FIRST DIVISION

DIDIPIO EARTH-SAVERS MULTIPURPOSE

ASSOCIATION,
INCORPORATED
(DESAMA),
MANUEL
BUTIC,
CESAR
MARIANO, LAURO ABANCE, BEN
TAYABAN, ANTONIO DINGCOG,
TEDDY B. KIMAYONG, ALONZO
ANANAYO, ANTONIO MALANUYA, JOSE BAHAG, ANDRES
INLAB,
RUFINO
LICYAYO,
ALFREDO CULHI, CATALILNA
INABYUHAN, GUAY DUMMANG,
GINA PULIDO, EDWIN ANSIBEY,
CORAZON
SICUAN,
LOPEZ
DUMULAG, FREDDIE AYDINON,
VILMA
JOSE,
FLORENTINA
MADDAWAT, LINDA DINGCOG,
ELMER SICUAN, GARY ANSIBEY,
JIMMY
MADDAWAT,
JIMMY
GUAY,
ALFREDO
CUT-ING,
ANGELINA UDAN, OSCAR INLAB,
JUANITA
CUT-ING,
ALBERT
PINKIHAN, CECILIA TAYABAN,
CRISTA BINWAK, PEDRO DUGAY,
SR., EDUARDO ANANAYO, ROBIN
INLAB, JR., LORENZO PULIDO,
TOMAS BINWAG, EVELYN BUYA,
JAIME DINGCOG, DINAOAN CUTING, PEDRO DONATO, MYRNA
GUAY, FLORA ANSIBEY, GRACE
DINAMLING, EDUARDO MENCIAS,
ROSENDA
JACOB,
SIONITA
DINGCOG,
GLORIA
JACOB,
MAXIMA
GUAY,
RODRIGO
PAGGADUT, MARINA ANSIBEY,
TOLENTINO
INLAB,
RUBEN
DULNUAN, GERONIMO LICYAYO,
LEONCIO
CUMTI,
MARY
DULNUAN, FELISA BALANBAN,
MYRNA DUYAN, MARY MALAN-

G.R. No. 157882

Present:
PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

UYA,
PRUDENCIO
ANSIBEY,
GUILLERMO GUAY, MARGARITA
CULHI, ALADIN ANSIBEY, PABLO
DUYAN, PEDRO PUGUON, JULIAN
INLAB,
JOSEPH
NACULON,
ROGER BAJITA, DINAON GUAY,
JAIME
ANANAYO,
MARY
ANSIBEY,
LINA
ANANAYO,
MAURA DUYAPAT, ARTEMEO
ANANAYO,
MARY
BABLING,
NORA ANSIBEY, DAVID DULNUAN,
AVELINO
PUGUON,
LUCAS
GUMAWI,
LUISA
ABBAC, CATHRIN
GUWAY,
CLARITA
TAYABAN,
FLORA
JAVERA, RANDY SICOAN, FELIZA
PUTAKI, CORAZON P. DULNUAN,
NENA D. BULLONG, ERMELYN
GUWAY,
GILBERT
BUTALE,
JOSEPH B. BULLONG, FRANCISCO
PATNAAN, JR., SHERWIN DUGAY,
TIRSO GULLINGAY, BENEDICT T.
NABALLIN, RAMON PUN-ADWAN,
ALFONSO DULNUAN, CARMEN D.
BUTALE,
LOLITA
ANSIBEY,
ABRAHAM DULNUAN, ARLYNDA
BUTALE, MODESTO A. ANSIBEY,
EDUARDO
LUGAY,
ANTONIO
HUMIWAT, ALFREDO PUMIHIC,
MIKE
TINO,
TONY
CABARROGUIS,
BASILIO
TAMLIWOK,
JR.,
NESTOR
TANGID,
ALEJO
TUGUINAY,
BENITO
LORENZO,
RUDY
BAHIWAG, ANALIZA BUTALE,
NALLEM
LUBYOC,
JOSEPH
DUHAYON, RAFAEL CAMPOL,
MANUEL
PUMALO,
DELFIN
AGALOOS, PABLO CAYANGA,
PERFECTO
SISON,
ELIAS
NATAMA,
LITO
PUMALO,
SEVERINA
DUGAY,
GABRIEL
PAKAYAO, JEOFFREY SINDAP,
FELIX TICUAN, MARIANO S.
MADDELA,
MENZI
TICAWA,

DOMINGA DUGAY, JOE BOLINEY,

JASON
ASANG,
TOMMY
ATENYAYO, ALEJO AGMALIW,
DIZON AGMALIW, EDDIE ATOS,
FELIMON
BLANCO,
DARRIL
DIGOY, LUCAS BUAY, ARTEMIO
BRAZIL, NICANOR MODI, LUIS
REDULFIN, NESTOR JUSTINO,
JAIME
CUMILA,
BENEDICT
GUINID, EDITHA ANIN, INOHYABAN BANDAO, LUIS BAYWONG,
FELIPE
DUHALNGON,
PETER
BENNEL, JOSEPH T. BUNGGALAN,
JIMMY B. KIMAYONG, HENRY
PUGUON,
PEDRO
BUHONG,
BUGAN NADIAHAN, SR., MARIA
EDEN ORLINO, SPC, PERLA
VISSORO, and BISHOP RAMON
VILLENA,
Petitioners,
- versus ELISEA GOZUN, in her capacity as
SECRETARY of the DEPARTMENT
OF ENVIRONMENT and NATURAL
RESOURCES (DENR), HORACIO
RAMOS, in his capacity as Director of
the Mines and Geosciences Bureau
(MGB-DENR), ALBERTO ROMULO,
in his capacity as the Executive
Secretary of the Office of the President,
RICHARD N. FERRER, in his
capacity as Acting Undersecretary of
the Office of the President, IAN
Promulgated:
HEATH SANDERCOCK, in his
capacity as President of CLIMAXMarch 30, 2006
ARIMCOMINING CORPORATION.
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This petition for prohibition and mandamus under Rule 65 of the Rules of
Court assails the constitutionality of Republic Act No. 7942 otherwise known as
the Philippine Mining Act of 1995, together with the Implementing Rules and
Regulations issued pursuant thereto, Department of Environment and Natural
Resources (DENR) Administrative Order No. 96-40, s. 1996 (DAO 96-40) and of
the Financial and Technical Assistance Agreement (FTAA) entered into on 20 June
1994 by the Republic of the Philippines andArimco Mining Corporation (AMC), a
corporation established under the laws of Australia and owned by its nationals.
.
On 25 July 1987, then President Corazon C. Aquino promulgated Executive
Order No. 279 which authorized the DENR Secretary to accept, consider and
evaluate proposals from foreign-owned corporations or foreign investors for
contracts of agreements involving either technical or financial assistance for largescale exploration, development, and utilization of minerals, which, upon
appropriate recommendation of the Secretary, the President may execute with the
foreign proponent.
On 3 March 1995, then President Fidel V. Ramos signed into law Rep. Act
No. 7942 entitled, An Act Instituting A New System of Mineral Resources
Exploration, Development, Utilization and Conservation, otherwise known as the
Philippine Mining Act of 1995.
On 15 August 1995, then DENR Secretary Victor O. Ramos issued
DENR Administrative Order (DAO) No. 23, Series of 1995, containing the
implementing guidelines of Rep. Act No. 7942. This was soon superseded by
DAO No. 96-40, s. 1996, which took effect on 23 January 1997 after due
publication.
Previously, however, or specifically on 20 June 1994, President Ramos
executed an FTAA with AMC over a total land area of 37,000 hectares covering
the provinces ofNueva Vizcaya and Quirino. Included in this area
is Barangay Dipidio, Kasibu, Nueva Vizcaya.
Subsequently, AMC consolidated with Climax Mining Limited to form a
single company that now goes under the new name of Climax-Arimco Mining

Corporation (CAMC), the controlling 99% of stockholders of which are Australian

nationals.
On 7 September 2001, counsels for petitioners filed a demand letter
addressed to then DENR Secretary Heherson Alvarez, for the cancellation of
the CAMC FTAA for the primary reason that Rep. Act No. 7942 and its
Implementing Rules and Regulations DAO 96-40 are unconstitutional. The Office
of the Executive Secretary was also furnished a copy of the said letter. There
being no response to both letters, another letter of the same content dated 17 June
2002 was sent to President Gloria Macapagal Arroyo. This letter was indorsed to
the DENR Secretary and eventually referred to the Panel of Arbitrators of the
Mines
and
Geosciences
Bureau
(MGB),
Regional
Office
No.
02, Tuguegarao,Cagayan, for further action.
On 12 November 2002, counsels for petitioners received a letter from the
Panel of Arbitrators of the MGB requiring the petitioners to comply with the Rules
of the Panel of Arbitrators before the letter may be acted upon.
Yet again, counsels for petitioners sent President Arroyo another demand
letter dated 8 November 2002. Said letter was again forwarded to the DENR
Secretary who referred the same to the MGB, Quezon City.
In a letter dated 19 February 2003, the MGB rejected the demand of
counsels for petitioners for the cancellation of the CAMC FTAA.
Petitioners thus filed the present petition for prohibition and mandamus, with
a prayer for a temporary restraining order. They pray that the Court issue an order:
1.

enjoining public respondents from acting on any application for FTAA;

2.

declaring unconstitutional the Philippine Mining Act of 1995 and its

Implementing Rules and Regulations;

3.

canceling the FTAA issued to CAMC.

In their memorandum petitioners pose the following issues:

I
WHETHER OR NOT REPUBLIC ACT NO. 7942 AND THE CAMC FTAA
ARE VOID BECAUSE THEY ALLOW THE UNJUST AND UNLAWFUL

TAKING OF PROPERTY WITHOUT PAYMENT OF JUST COMPENSATION

, IN VIOLATION OF SECTION 9, ARTICLE III OF THE CONSTITUTION.
II
WHETHER OR NOT THE MINING ACT AND ITS IMPLEMENTING RULES
AND REGULATIONS ARE VOID AND UNCONSTITUTIONAL FOR
SANCTIONING AN UNCONSTITUTIONAL ADMINISTRATIVE PROCESS
OF DETERMINING JUST COMPENSATION.

III
WHETHER OR NOT THE STATE, THROUGH REPUBLIC ACT NO. 7942
AND THE CAMC FTAA, ABDICATED ITS PRIMARY RESPONSIBILITY
TO THE FULL CONTROL AND SUPERVISION OVER NATURAL
RESOURCES.
IV
WHETHER OR NOT THE RESPONDENTS INTERPRETATION OF THE
ROLE OF WHOLLY FOREIGN AND FOREIGN-OWNED CORPORATIONS
IN THEIR INVOLVEMENT IN MINING ENTERPRISES, VIOLATES
PARAGRAPH 4, SECTION 2, ARTICLE XII OF THE CONSTITUTION.
V
WHETHER OR NOT THE 1987 CONSTITUTION PROHIBITS SERVICE
CONTRACTS.[1]

Before going to the substantive issues, the procedural question raised by

public respondents shall first be dealt with. Public respondents are of the view that
petitioners eminent domain claim is not ripe for adjudication as they fail to allege
that CAMC has actually taken their properties nor do they allege that their property
rights have been endangered or are in danger on account of CAMCs FTAA. In
effect, public respondents insist that the issue of eminent domain is not
a justiciable controversy which this Court can take cognizance of.
A justiciable controversy is defined as a definite and concrete dispute
touching on the legal relations of parties having adverse legal interests which may
be resolved by a court of law through the application of a law.[2] Thus, courts have
no judicial power to review cases involving political questions and as a rule, will
desist from taking cognizance of speculative or hypothetical cases, advisory
opinions and cases that have become moot.[3] The Constitution is quite explicit on
this matter.[4] It provides that judicial power includes the duty of the courts of

justice to settle actual controversies involving rights which are legally demandable
and enforceable. Pursuant to this constitutional mandate, courts, through the power
of judicial review, are to entertain only real disputes between conflicting parties
through the application of law. For the courts to exercise the power of judicial
review, the following must be extant (1) there must be an actual case calling for the
exercise of judicial power; (2) the question must be ripe for adjudication; and (3)
the person challenging must have the standing.[5]
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.[6] There must be a contrariety of
legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence.
Closely related to the second requisite is that the question must be ripe for
adjudication. A question is considered ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.[7]
The third requisite is legal standing or locus standi. It is defined as a
personal or substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being challenged,
alleging more than a generalized grievance.[8] The gist of the question of standing
is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional
questions.[9] Unless a person is injuriously affected in any of his constitutional
rights by the operation of statute or ordinance, he has no standing.[10]
In the instant case, there exists a live controversy involving a clash of legal
rights as Rep. Act No. 7942 has been enacted, DAO 96-40 has been approved
and an FTAAshave been entered into. The FTAA holders have already been
operating in various provinces of the country. Among them is CAMC which
operates in the provinces of NuevaVizcaya and Quirino where numerous
individuals including the petitioners are imperiled of being ousted from their
landholdings in view of the CAMC FTAA. In light of this, the court cannot await
the adverse consequences of the law in order to consider the controversy actual and
ripe for judicial intervention.[11] Actual eviction of the land owners and occupants
need not happen for this Court to intervene. As held in Pimentel, Jr. v. Hon.
Aguirre[12]:

By the mere enactment of the questioned law or the approval of the challenged
act, the dispute is said to have ripened into a judicial controversy even without
any other overt act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.[13]

Petitioners embrace various segments of the society. These

include Didipio Earth-Savers Multi-Purpose Association, Inc., an organization of
farmers and indigenous peoples organized under Philippine laws, representing a
community actually affected by the mining activities of CAMC, as well as other
residents of areas affected by the mining activities of CAMC. These petitioners
have the standing to raise the constitutionality of the questioned FTAA as they
allege a personal and substantial injury.[14] They assert that they are affected by the
mining activities of CAMC. Likewise, they are under imminent threat of being
displaced from their landholdings as a result of the implementation of the
questioned FTAA. They thus meet the appropriate case requirement as they assert
an interest adverse to that of respondents who, on the other hand, claim the validity
of the assailed statute and the FTAA of CAMC.
Besides, the transcendental importance of the issues raised and the
magnitude of the public interest involved will have a bearing on the countrys
economy which is to a greater extent dependent upon the mining industry. Also
affected by the resolution of this case are the proprietary rights of numerous
residents in the mining contract areas as well as the social existence of indigenous
peoples which are threatened. Based on these considerations, this Court deems it
proper to take cognizance of the instant petition.
Having resolved the procedural question, the constitutionality of the law
under attack must be addressed squarely.
First Substantive Issue: Validity of Section 76 of Rep. Act No. 7942 and DAO
96-40

In seeking to nullify Rep. Act No. 7942 and its implementing rules DAO 9640 as unconstitutional, petitioners set their sight on Section 76 of Rep. Act No.
7942 and Section 107 of DAO 96-40 which they claim allow the unlawful and
unjust taking of private property for private purpose in contradiction with
Section 9, Article III of the 1987 Constitution mandating that private property shall
not be taken except for public use and the corresponding payment of just
compensation. They assert that public respondent DENR, through the Mining Act

and its Implementing Rules and Regulations, cannot, on its own, permit entry into
a private property and allow taking of land without payment of just compensation.
Interpreting Section 76 of Rep. Act No. 7942 and Section 107 of DAO 9640, juxtaposed with the concept of taking of property for purposes of eminent
domain in the case of Republic v. Vda. de Castellvi,[15] petitioners assert that there
is indeed a taking upon entry into private lands and concession areas.
Republic v. Vda. de Castellvi defines taking under the concept of eminent
domain as entering upon private property for more than a momentary period, and,
under the warrant or color of legal authority, devoting it to a public use, or
otherwise informally appropriating or injuriously affecting it in such a way as to
substantially oust the owner and deprive him of all beneficial enjoyment thereof.
From the criteria set forth in the cited case, petitioners claim that the entry
into a private property by CAMC, pursuant to its FTAA, is for more than a
momentary period,i.e., for 25 years, and renewable for another 25 years; that the
entry into the property is under the warrant or color of legal authority pursuant to
the FTAA executed between the government and CAMC; and that the entry
substantially ousts the owner or possessor and deprives him of all beneficial
enjoyment of the property. These facts, according to the petitioners, amount to
taking. As such, petitioners question the exercise of the power of eminent domain
as unwarranted because respondents failed to prove that the entry into private
property is devoted for public use.
Petitioners also stress that even without the doctrine in the Castellvi case, the
nature of the mining activity, the extent of the land area covered by the CAMC
FTAA and the various rights granted to the proponent or the FTAA holder, such
as (a) the right of possession of the Exploration Contract Area, with full right of
ingress and egress and the right to occupy the same; (b) the right not to be
prevented from entry into private lands by surface owners and/or occupants thereof
when prospecting, exploring and exploiting for minerals therein; (c) the right to
enjoy easement rights, the use of timber, water and other natural resources in the
Exploration Contract Area; (d) the right of possession of the Mining Area, with full
right of ingress and egress and the right to occupy the same; and (e) the right to
enjoy easement rights, water and other natural resources in the Mining Area, result
in a taking of private property.
Petitioners quickly add that even assuming arguendo that there is no
absolute, physical taking, at the very least, Section 76 establishes a legal easement
upon the surface owners, occupants and concessionaires of a mining contract area

sufficient to deprive them of enjoyment and use of the property and that such
burden imposed by the legal easement falls within the purview of eminent domain.
To further bolster their claim that the legal easement established is
equivalent to taking, petitioners cite the case of National Power Corporation v.
Gutierrez[16] holding that the easement of right-of-way imposed against the use of
the land for an indefinite period is a taking under the power of eminent domain.
Traversing petitioners assertion, public respondents argue that Section 76 is
not a taking provision but a valid exercise of the police power and by virtue of
which, the state may prescribe regulations to promote the health, morals, peace,
education, good order, safety and general welfare of the people. This government
regulation involves the adjustment of rights for the public good and that this
adjustment curtails some potential for the use or economic exploitation of private
property. Public respondents concluded that to require compensation in all such
circumstances would compel the government to regulate by purchase.
Public respondents are inclined to believe that by entering private lands and
concession areas, FTAA holders do not oust the owners thereof nor deprive them
of all beneficial enjoyment of their properties as the said entry merely establishes a
legal easement upon surface owners, occupants and concessionaires of a mining
contract area.
Taking in Eminent Domain Distinguished from Regulation in Police Power

The power of eminent domain is the inherent right of the state (and of those
entities to which the power has been lawfully delegated) to condemn private
property to public use upon payment of just compensation.[17] On the other hand,
police power is the power of the state to promote public welfare by restraining and
regulating the use of liberty and property.[18] Although both police power and the
power of eminent domain have the general welfare for their object, and recent
trends show a mingling[19] of the two with the latter being used as an implement of
the former, there are still traditional distinctions between the two.
Property condemned under police power is usually noxious or intended for a
noxious purpose; hence, no compensation shall be paid.[20] Likewise, in the
exercise of police power, property rights of private individuals are subjected to
restraints and burdens in order to secure the general comfort, health, and prosperity
of the state. Thus, an ordinance prohibiting theaters from selling tickets in excess

of their seating capacity (which would result in the diminution of profits of the
theater-owners) was upheld valid as this would promote the comfort, convenience
and safety of the customers.[21] In U.S. v. Toribio,[22] the court upheld the
provisions of Act No. 1147, a statute regulating the slaughter of carabao for the
purpose of conserving an adequate supply of draft animals, as a valid exercise of
police power, notwithstanding the property rights impairment that the ordinance
imposed on cattle owners. A zoning ordinance prohibiting the operation of a
lumber yard within certain areas was assailed as unconstitutional in that it was an
invasion of the property rights of the lumber yard owners in People v. de
Guzman.[23] The Court nonetheless ruled that the regulation was a valid exercise of
police power. A similar ruling was arrived at in Seng Kee S Co. v. Earnshaw and
Piatt[24] where an ordinance divided the City of Manila into industrial and
residential areas.
A thorough scrutiny of the extant jurisprudence leads to a cogent deduction
that where a property interest is merely restricted because the continued use thereof
would be injurious to public welfare, or where property is destroyed because its
continued existence would be injurious to public interest, there is no compensable
taking.[25] However, when a property interest is appropriated and applied to some
public purpose, there is compensable taking.[26]
According to noted constitutionalist, Fr. Joaquin Bernas, SJ, in the exercise
of its police power regulation, the state restricts the use of private property, but
none of the property interests in the bundle of rights which constitute ownership is
appropriated for use by or for the benefit of the public.[27] Use of the property by
the owner was limited, but no aspect of the property is used by or for the
public.[28] The deprivation of use can in fact be total and it will not constitute
compensable taking if nobody else acquires use of the property or any interest
therein.[29]
If, however, in the regulation of the use of the property, somebody else
acquires the use or interest thereof, such restriction constitutes compensable
taking. Thus, in City Government of Quezon City v. Ericta,[30] it was argued by the
local government that an ordinance requiring private cemeteries to reserve 6% of
their total areas for the burial of paupers was a valid exercise of the police power
under the general welfare clause. This court did not agree in the contention, ruling
that property taken under the police power is sought to be destroyed and not, as in
this case, to be devoted to a public use. It further declared that the ordinance in
question was actually a taking of private property without just compensation of a
certain area from a private cemetery to benefit paupers who are charges of the local

government. Being an exercise of eminent domain without provision for the

payment of just compensation, the same was rendered invalid as it violated the
principles governing eminent domain.
In People v. Fajardo,[31] the municipal mayor refused Fajardo permission to
build a house on his own land on the ground that the proposed structure would
destroy the view or beauty of the public plaza. The ordinance relied upon by the
mayor prohibited the construction of any building that would destroy the view of
the plaza from the highway. The court ruled that the municipal ordinance under
the guise of police power permanently divest owners of the beneficial use of their
property for the benefit of the public; hence, considered as a taking under the
power of eminent domain that could not be countenanced without payment of just
compensation to the affected owners. In this case, what the municipality wanted
was to impose an easement on the property in order to preserve the view or beauty
of the public plaza, which was a form of utilization ofFajardos property for public
benefit.[32]
While the power of eminent domain often results in the appropriation of title
to or possession of property, it need not always be the case. Taking may include
trespass without actual eviction of the owner, material impairment of the value of
the property or prevention of the ordinary uses for which the property was intended
such as the establishment of an easement.[33] In Ayala de Roxas v. City of
Manila,[34] it was held that the imposition of burden over a private property through
easement was considered taking; hence, payment of just compensation is
required. The Court declared:
And, considering that the easement intended to be established, whatever
may be the object thereof, is not merely a real right that will encumber the
property, but is one tending to prevent the exclusive use of one portion of the
same, by expropriating it for public use which, be it what it may, can not be
accomplished unless the owner of the property condemned or seized be
previously and duly indemnified, it is proper to protect the appellant by means of
the remedy employed in such cases, as it is only adequate remedy when no other
legal action can be resorted to, against an intent which is nothing short of an
arbitrary restriction imposed by the city by virtue of the coercive power with
which the same is invested.

And in the case of National Power Corporation v. Gutierrez,[35] despite

the NPCs protestation that the owners were not totally deprived of the use of the
land and could still plant the same crops as long as they did not come into contact
with the wires, the Court nevertheless held that the easement of right-of-way was a
taking under the power of eminent domain. The Court said:

In the case at bar, the easement of right-of-way is definitely a taking under

the power of eminent domain. Considering the nature and effect of the installation
of 230 KV Mexico-Limaytransmission lines, the limitation imposed by NPC
against the use of the land for an indefinite period deprives private respondents of
its ordinary use.

A case exemplifying an instance of compensable taking which does not

entail transfer of title is Republic v. Philippine Long Distance Telephone
Co.[36] Here, the Bureau of Telecommunications, a government instrumentality,
had contracted with the PLDT for the interconnection between the Government
Telephone System and that of the PLDT, so that the former could make use of the
lines and facilities of the PLDT. In its desire to expand services to government
offices, the Bureau of Telecommunications demanded to expand its use of the
PLDT lines. Disagreement ensued on the terms of the contract for the use of the
PLDT facilities. The Court ruminated:
Normally, of course, the power of eminent domain results in the taking or
appropriation of title to, and possession of, the expropriated property; but no
cogent reason appears why said power may not be availed of to impose only a
burden upon the owner of the condemned property, without loss of title and
possession. It is unquestionable that real property may, through expropriation, be
subjected to an easement right of way.[37]

In Republic v. Castellvi,[38] this Court had the occasion to spell out the
requisites of taking in eminent domain, to wit:
(1)

the expropriator must enter a private property;

(2)

the entry must be for more than a momentary period.

(3)

the entry must be under warrant or color of legal authority;

(4)

the property must be devoted to public use or otherwise informally

appropriated or injuriously affected;

(5)

the utilization of the property for public use must be in such a way as to
oust the owner and deprive him of beneficial enjoyment of the property.

As shown by the foregoing jurisprudence, a regulation which substantially

deprives the owner of his proprietary rights and restricts the beneficial use and
enjoyment for public use amounts to compensable taking. In the case under
consideration, the entry referred to in Section 76 and the easement rights under
Section 75 of Rep. Act No. 7942 as well as the various rights to CAMC under its

FTAA are no different from the deprivation of proprietary rights in the cases
discussed which this Court considered as taking. Section 75 of the law in question
reads:
Easement Rights. - When mining areas are so situated that for purposes of
more convenient mining operations it is necessary to build, construct or install on
the mining areas or lands owned, occupied or leased by other persons, such
infrastructure as roads, railroads, mills, waste dump sites, tailing ponds,
warehouses, staging or storage areas and port facilities, tramways, runways,
airports, electric transmission, telephone or telegraph lines, dams and their normal
flood and catchment areas, sites for water wells, ditches, canals, new river beds,
pipelines, flumes, cuts, shafts, tunnels, or mills, the contractor, upon payment of
just compensation, shall be entitled to enter and occupy said mining areas or
lands.

Section 76 provides:
Entry into private lands and concession areas Subject to prior
notification, holders of mining rights shall not be prevented from entry into
private lands and concession areas by surface owners, occupants, or
concessionaires when conducting mining operations therein.

The CAMC FTAA grants in favor of CAMC the right of possession of the
Exploration Contract Area, the full right of ingress and egress and the right to
occupy the same. It also bestows CAMC the right not to be prevented from entry
into private lands by surface owners or occupants thereof when prospecting,
exploring and exploiting minerals therein.
The entry referred to in Section 76 is not just a simple right-of-way which is
ordinarily allowed under the provisions of the Civil Code. Here, the holders of
mining rights enter private lands for purposes of conducting mining activities such
as exploration, extraction and processing of minerals. Mining right holders build
mine infrastructure, dig mine shafts and connecting tunnels, prepare tailing ponds,
storage areas and vehicle depots, install their machinery, equipment and sewer
systems. On top of this, under Section 75, easement rights are accorded to them
where they may build warehouses, port facilities, electric transmission, railroads
and other infrastructures necessary for mining operations. All these will definitely
oust the owners or occupants of the affected areas the beneficial ownership of their
lands. Without a doubt, taking occurs once mining operations commence.
Section 76 of Rep. Act No. 7942 is a Taking Provision

Moreover, it would not be amiss to revisit the history of mining laws of this
country which would help us understand Section 76 of Rep. Act No. 7942.
This provision is first found in Section 27 of Commonwealth Act No. 137
which took effect on 7 November 1936, viz:
Before entering private lands the prospector shall first apply in writing for
written permission of the private owner, claimant, or holder thereof, and in case
of refusal by such private owner, claimant, or holder to grant such permission, or
in case of disagreement as to the amount of compensation to be paid for such
privilege of prospecting therein, the amount of such compensation shall be fixed
by agreement among the prospector, the Director of the Bureau of Mines and the
surface owner, and in case of their failure to unanimously agree as to the amount
of compensation, all questions at issue shall be determined by the Court of First
Instance.

Similarly, the pertinent provision of Presidential Decree No. 463, otherwise

known as The Mineral Resources Development Decree of 1974, provides:
SECTION 12. Entry to Public and Private Lands. A person who desires
to conduct prospecting or other mining operations within public lands covered by
concessions or rights other than mining shall first obtain the written permission of
the government official concerned before entering such lands. In the case of
private lands, the written permission of the owner or possessor of the land must be
obtained before entering such lands. In either case, if said permission is denied,
the Director, at the request of the interested person may intercede with the owner
or possessor of the land. If the intercession fails, the interested person may bring
suit in the Court of First Instance of the province where the land is situated. If the
court finds the request justified, it shall issue an order granting the permission
after fixing the amount of compensation and/or rental due the owner or possessor:
Provided, That pending final adjudication of such amount, the court shall upon
recommendation of the Director permit the interested person to enter, prospect
and/or undertake other mining operations on the disputed land upon posting by
such interested person of a bond with the court which the latter shall consider
adequate to answer for any damage to the owner or possessor of the land resulting
from such entry, prospecting or any other mining operations.

Hampered by the difficulties and delays in securing surface rights for the
entry into private lands for purposes of mining operations, Presidential Decree No.
512 dated 19 July 1974 was passed into law in order to achieve full and accelerated
mineral resources development. Thus, Presidential Decree No. 512 provides for a
new system of surface rights acquisition by mining prospectors and
claimants. Whereas in Commonwealth Act No. 137 and Presidential Decree No.
463 eminent domain may only be exercised in order that the mining claimants can
build, construct or install roads, railroads, mills, warehouses and other facilities,

this time, the power of eminent domain may now be invokedby mining operators
for the entry, acquisition and use of private lands, viz:
SECTION 1. Mineral prospecting, location, exploration, development
and exploitation is hereby declared of public use and benefit, and for which the
power of eminent domain may be invoked and exercised for the entry, acquisition
and use of private lands. x x x.

The evolution of mining laws gives positive indication that mining operators
who are qualified to own lands were granted the authority to exercise eminent
domain for the entry, acquisition, and use of private lands in areas open for mining
operations. This grant of authority extant in Section 1 of Presidential Decree No.
512 is not expressly repealed by Section 76 of Rep. Act No. 7942; and
neither are the former statutes impliedly repealed by the former. These two
provisions can stand together even if Section 76 of Rep. Act No. 7942 does not
spell out the grant of the privilege to exercise eminent domain which was present
in the old law.
It is an established rule in statutory construction that in order that one law
may operate to repeal another law, the two laws must be inconsistent.[39] The
former must be so repugnant as to be irreconciliable with the latter act. Simply
because a latter enactment may relate to the same subject matter as that of an
earlier statute is not of itself sufficient to cause an implied repeal of the latter, since
the new law may be cumulative or a continuation of the old one. As has been the
ruled, repeals by implication are not favored, and will not be decreed unless it is
manifest that the legislature so intended.[40] As laws are presumed to be passed
with deliberation and with full knowledge of all existing ones on the subject, it is
but reasonable to conclude that in passing a statute it was not intended to interfere
with or abrogate any former law relating to the same matter, unless the repugnancy
between the two is not only irreconcilable, but also clear and convincing, and
flowing necessarily from the language used, unless the later act fully embraces the
subject matter of the earlier, or unless the reason for the earlier act is beyond
peradventure removed.[41] Hence, every effort must be used to make all acts stand
and if, by any reasonable construction, they can be reconciled, the latter act will
not operate as a repeal of the earlier.
Considering that Section 1 of Presidential Decree No. 512 granted the
qualified mining operators the authority to exercise eminent domain and since this
grant of authority is deemed incorporated in Section 76 of Rep. Act No. 7942, the
inescapable conclusion is that the latter provision is a taking provision.

While this Court declares that the assailed provision is a taking provision,
this does not mean that it is unconstitutional on the ground that it allows taking of
private property without the determination of public use and the payment of just
compensation.
The taking to be valid must be for public use.[42] Public use as a requirement
for the valid exercise of the power of eminent domain is now synonymous with
public interest, public benefit, public welfare and public convenience.[43] It
includes the broader notion of indirect public benefit or advantage. Public use as
traditionally understood as actual use by the public has already been
abandoned.[44]
Mining industry plays a pivotal role in the economic development of the
country and is a vital tool in the governments thrust of accelerated
recovery.[45] The importance of the mining industry for national development is
expressed in Presidential Decree No. 463:
WHEREAS, mineral production is a major support of the national
economy, and therefore the intensified discovery, exploration, development and
wise utilization of the countrys mineral resources are urgently needed for
national development.

Irrefragably, mining is an industry which is of public benefit.

That public use is negated by the fact that the state would be taking private
properties for the benefit of private mining firms or mining contractors is not at all
true. InHeirs of Juancho Ardona v. Reyes,[46] petitioners therein contended that the
promotion of tourism is not for public use because private concessionaires would
be allowed to maintain various facilities such as restaurants, hotels, stores, etc.,
inside the tourist area. The Court thus contemplated:
The rule in Berman v. Parker [348 U.S. 25; 99 L. ed. 27] of deference to
legislative policy even if such policy might mean taking from one private person
and conferring on another private person applies as well in the Philippines.
. . . Once the object is within the authority of Congress,
the means by which it will be attained is also for Congress to
determine. Here one of the means chosen is the use of private
enterprise for redevelopment of the area. Appellants argue that
this makes the project a taking from one businessman for the
benefit of another businessman. But the means of executing the

project are for Congress and Congress alone to determine, once the
public purpose has been established. x x x[47]

Petitioners further maintain that the states discretion to decide when to take
private property is reduced contractually by Section 13.5 of the CAMC FTAA,
which reads:
If the CONTRACTOR so requests at its option, the GOVERNMENT shall
use its offices and legal powers to assist in the acquisition at reasonable cost of
any surface areas or rights required by the CONTRACTOR at
the CONTRACTORs cost to carry out the Mineral Exploration and the Mining
Operations herein.
All obligations, payments and expenses arising from, or incident to, such
agreements or acquisition of right shall be for the account of the CONTRACTOR
and shall be recoverable as Operating Expense.

According to petitioners, the government is reduced to a sub-contractor upon

the request of the private respondent, and on account of the foregoing provision,
the contractor can compel the government to exercise its power of eminent domain
thereby derogating the latters power to expropriate property.
The provision of the FTAA in question lays down the ways and means by
which the foreign-owned contractor, disqualified to own land, identifies to the
government the specific surface areas within the FTAA contract area to be
acquired for the mine infrastructure.[48] The government then acquires ownership
of the surface land areas on behalf of the contractor, through a voluntary
transaction in order to enable the latter to proceed to fully implement the
FTAA. Eminent domain is not yet called for at this stage since there are still
various avenues by which surface rights can be acquired other than expropriation.
The FTAA provision under attack merely facilitates the implementation of the
FTAA given to CAMC and shields it from violating the Anti-Dummy Law. Hence,
when confronted with the same question in La Bugal-BLaan Tribal Association,
Inc. v. Ramos,[49] the Court answered:
Clearly, petitioners have needlessly jumped to unwarranted conclusions,
without being aware of the rationale for the said provision. That provision does
not call for the exercise of the power of eminent domain -- and determination of
just compensation is not an issue -- as much as it calls for a qualified party to
acquire the surface rights on behalf of a foreign-owned contractor.
Rather than having the foreign contractor act through a dummy
corporation, having the State do the purchasing is a better alternative. This will at
least cause the government to be aware of such transaction/s and foster

transparency in the contractors dealings with the local property owners. The
government, then, will not act as a subcontractor of the contractor; rather, it will
facilitate the transaction and enable the parties to avoid a technical violation of
the Anti-Dummy Law.

There is also no basis for the claim that the Mining Law and its
implementing rules and regulations do not provide for just compensation in
expropriating private properties. Section 76 of Rep. Act No. 7942 and Section 107
of DAO 96-40 provide for the payment of just compensation:
Section 76. xxx Provided, that any damage to the property of the surface
owner, occupant, or concessionaire as a consequence of such operations shall
be properly compensated as may be provided for in the implementing rules and
regulations.
Section 107. Compensation of the Surface Owner and Occupant- Any
damage done to the property of the surface owners, occupant, or concessionaire
thereof as a consequence of the mining operations or as a result of the
construction or installation of the infrastructure mentioned in 104 above shall be
properly and justly compensated.
Such compensation shall be based on the agreement entered into between
the holder of mining rights and the surface owner, occupant or concessionaire
thereof, where appropriate, in accordance with P.D. No. 512. (Emphasis
supplied.)

Second Substantive Issue: Power of Courts to Determine Just Compensation

Closely-knit to the issue of taking is the determination of just

compensation. It is contended that Rep. Act No. 7942 and Section 107 of DAO
96-40 encroach on the power of the trial courts to determine just compensation in
eminent domain cases inasmuch as the same determination of proper compensation
are cognizable only by the Panel of Arbitrators.
The question on the judicial determination of just compensation has been
settled in the case of Export Processing Zone Authority v. Dulay[50] wherein the
court declared that the determination of just compensation in eminent domain cases
is a judicial function. Even as the executive department or the legislature may
make the initial determinations, the same cannot prevail over the courts findings.
Implementing Section 76 of Rep. Act No. 7942, Section 105 of DAO 96-40
states that holder(s) of mining right(s) shall not be prevented from entry into
its/their contract/mining areas for the purpose of exploration, development, and/or

utilization. That in cases where surface owners of the lands, occupants or

concessionaires refuse to allow the permit holder or contractor entry, the latter
shall bring the matter before the Panel of Arbitrators for proper
disposition. Section 106 states that voluntary agreements between the two parties
permitting the mining right holders to enter and use the surface owners lands shall
be registered with the Regional Office of the MGB. In connection with Section
106, Section 107 provides that the compensation for the damage done to the
surface owner, occupant or concessionaire as a consequence of mining operations
or as a result of the construction or installation of the infrastructure shall be
properly and justly compensated and that such compensation shall be based on the
agreement between the holder of mining rights and surface owner, occupant or
concessionaire, or where appropriate, in accordance with Presidential Decree No.
512. In cases where there is disagreement to the compensation or where there is no
agreement, the matter shall be brought before the Panel of Arbitrators. Section 206
of the implementing rules and regulations provides an aggrieved party the remedy
to appeal the decision of the Panel of Arbitrators to the Mines Adjudication Board,
and the latters decision may be reviewed by the Supreme Court by filing a petition
for review on certiorari.[51]
An examination of the foregoing provisions gives no indication that the
courts are excluded from taking cognizance of expropriation cases under the
mining law. The disagreement referred to in Section 107 does not involve the
exercise of eminent domain, rather it contemplates of a situation wherein the
permit holders are allowed by the surface owners entry into the latters lands and
disagreement ensues as regarding the proper compensation for the allowed entry
and use of the private lands. Noticeably, the provision points to a voluntary sale or
transaction, but not to an involuntary sale.
The legislature, in enacting the mining act, is presumed to have deliberated
with full knowledge of all existing laws and jurisprudence on the subject. Thus, it
is but reasonable to conclude that in passing such statute it was in accord with the
existing laws and jurisprudence on the jurisdiction of courts in the determination of
just compensation and that it was not intended to interfere with or abrogate any
former law relating to the same matter. Indeed, there is nothing in the provisions of
the assailed law and itsimplementing rules and regulations that exclude the courts
from their jurisdiction to determine just compensation in expropriation proceedings
involving mining operations. Although Section 105 confers upon the Panel of
Arbitrators the authority to decide cases where surface owners, occupants,
concessionaires refuse permit holders entry, thus, necessitating involuntary taking,
this does not mean that the determination of the just compensation by the Panel of

Arbitrators or the Mines Adjudication Board is final and conclusive. The

determination is only preliminary unless accepted by all parties concerned. There
is nothing wrong with the grant of primary jurisdiction by the Panel of Arbitrators
or the Mines Adjudication Board to determine in a preliminary matter the
reasonable compensation due the affected landowners or occupants.[52] The
original and exclusive jurisdiction of the courts to decide determination of just
compensation remains intact despite the preliminary determination made by the
administrative agency. As held in Philippine Veterans Bank v. Court of
Appeals[53]:
The jurisdiction of the Regional Trial Courts is not any less original and
exclusive because the question is first passed upon by the DAR, as the judicial
proceedings are not a continuation of the administrative determination.

Third Substantive Issue: Sufficient Control by the State Over Mining

Operations
Anent the third issue, petitioners charge that Rep. Act No. 7942, as well as
its Implementing Rules and Regulations, makes it possible for FTAA contracts to
cede over to a fully foreign-owned corporation full control and management of
mining enterprises, with the result that the State is allegedly reduced to a passive
regulator dependent on submitted plans and reports, with weak review and audit
powers. The State is not acting as the supposed owner of the natural resources for
and on behalf of the Filipino people; it practically has little effective say in the
decisions made by the enterprise. In effect, petitioners asserted that the law, the
implementing regulations, and the CAMC FTAA cede beneficial ownership of the
mineral resources to the foreign contractor.
It must be noted that this argument was already raised in La BugalBLaan Tribal Association, Inc. v. Ramos,[54] where the Court answered in the
following manner:
RA 7942 provides for the states control and supervision over mining
operations. The following provisions thereof establish the mechanism of
inspection and visitorial rights over mining operations and institute reportorial
requirements in this manner:

1.

Sec. 8 which provides for the DENRs power of over-all

supervision and periodic review for the conservation,

management, development and proper use of the States

mineral resources;
2.

Sec. 9 which authorizes the Mines and Geosciences

Bureau (MGB) under the DENR to exercise direct
charge in the administration and disposition of mineral
resources, and empowers the MGB to monitor the
compliance by the contractor of the terms and
conditions of the mineral agreements, confiscate
surety and performance bonds, and deputize whenever
necessary any member or unit of the Phil. National
Police, barangay, duly registered non-governmental
organization (NGO) or any qualified person to police
mining activities;

3.

Sec. 66 which vests in the Regional Director exclusive

jurisdiction over safety inspections of all installations,
whether surface or underground, utilized in mining
operations.

4.

Sec. 35, which incorporates into all FTAAs the

following terms, conditions and warranties:
(g)

Mining operations shall be conducted in

accordance with the provisions of the Act and
its IRR.

(h)

Work programs and minimum expenditures

commitments.
xxxx

(k)

Requiring proponent to effectively use

appropriate anti-pollution technology and
facilities to protect the environment and
restore or rehabilitate mined-out areas.

(l)

The contractors shall furnish the

Government records of geologic, accounting
and other relevant data for its mining
operation, and that books of accounts and
records shall be open for inspection by the
government. x x x.

(m) Requiring the proponent to dispose of the

minerals at the highest price and more
advantageous terms and conditions.
xxxx
(o)

Such other terms and conditions consistent

with the Constitution and with this Act as the

Secretary may deem to be for the best interest

of the State and the welfare of the Filipino
people.
The foregoing provisions of Section 35 of RA 7942 are also reflected and
implemented in Section 56 (g), (h), (l), (m) and (n) of the Implementing Rules,
DAO 96-40.
Moreover, RA 7942 and DAO 96-40 also provide various stipulations
confirming the governments control over mining enterprises:

The contractor is to relinquish to the government those portions of the

contract area not needed for mining operations and not covered by any
declaration of mining feasibility (Section 35-e, RA 7942; Section 60, DAO
96-40).

The contractor must comply with the provisions pertaining to mine safety,
health and environmental protection (Chapter XI, RA 7942; Chapters XV and
XVI, DAO 96-40).

For violation of any of its terms and conditions, government may cancel an
FTAA. (Chapter XVII, RA 7942; Chapter XXIV, DAO 96-40).

An FTAA contractor is obliged to open its books of accounts and records for
0inspection by the government (Section 56-m, DAO 96-40).

An FTAA contractor has to dispose of the minerals and by-products at the

highest market price and register with the MGB a copy of the sales
agreement (Section 56-n, DAO 96-40).

MGB is mandated to monitor the contractors compliance with the terms and
conditions of the FTAA; and to deputize, when necessary, any member or
unit of the Philippine National Police, the barangay or a DENR-accredited
nongovernmental organization to police mining activities (Section 7-d and -f,
DAO 96-40).

An FTAA cannot be transferred or assigned without prior approval by the

President (Section 40, RA 7942; Section 66, DAO 96-40).

A mining project under an FTAA cannot proceed to the

construction/development/utilization stage, unless its Declaration of Mining
Project Feasibility has been approved by government (Section 24, RA 7942).

The Declaration of Mining Project Feasibility filed by the contractor cannot

be approved without submission of the following documents:

1. Approved mining project feasibility study (Section 53-d,

DAO 96-40)
2. Approved three-year work program (Section 53-a-4,
DAO 96-40)
3. Environmental compliance certificate (Section 70, RA
7942)
4. Approved environmental protection and enhancement
program (Section 69, RA 7942)

5. Approval by
the Sangguniang Panlalawigan/Bayan/Barangay (Section
70, RA 7942; Section 27, RA 7160)
6. Free and prior informed consent by the indigenous
peoples concerned, including payment of royalties
through a Memorandum of Agreement (Section 16, RA
7942; Section 59, RA 8371)

The FTAA contractor is obliged to assist in the development of its mining

community, promotion of the general welfare of its inhabitants, and
development of science and mining technology (Section 57, RA 7942).

The FTAA contractor is obliged to submit reports (on quarterly, semi-annual

or annual basis as the case may be; per Section 270, DAO 96-40), pertaining
to the following:

1. Exploration
2. Drilling
3. Mineral resources and reserves
4. Energy consumption
5. Production
6. Sales and marketing
7. Employment
8. Payment of taxes, royalties, fees and other Government
Shares
9. Mine safety, health and environment
10. Land use
11. Social development
12. Explosives consumption

An FTAA pertaining to areas within government reservations cannot be

granted without a written clearance from the government agencies
concerned (Section 19, RA 7942; Section 54, DAO 96-40).

An FTAA contractor is required to post a financial guarantee bond in favor

of the government in an amount equivalent to its expenditures obligations
for any particular year. This requirement is apart from the representations
and warranties of the contractor that it has access to all the financing,
managerial and technical expertise and technology necessary to carry out the
objectives of the FTAA (Section 35-b, -e, and -f, RA 7942).

Other reports to be submitted by the contractor, as required under DAO 9640, are as follows: an environmental report on the rehabilitation of the
mined-out area and/or mine waste/tailing covered area, and anti-pollution
measures undertaken (Section 35-a-2); annual reports of the mining
operations and records of geologic accounting (Section 56-m); annual
progress reports and final report of exploration activities (Section 56-2).

Other programs required to be submitted by the contractor, pursuant to DAO

96-40, are the following: a safety and health program (Section 144); an
environmental work program (Section 168); an annual environmental
protection and enhancement program (Section 171).

The foregoing gamut of requirements, regulations, restrictions and

limitations imposed upon the FTAA contractor by the statute and regulations
easily overturns petitioners contention. The setup under RA 7942 and DAO 9640 hardly relegates the State to the role of a passive regulator dependent on
submitted plans and reports. On the contrary, the government agencies concerned
are empowered to approve or disapprove -- hence, to influence, direct and change
-- the various work programs and the corresponding minimum expenditure
commitments for each of the exploration, development and utilization phases of
the mining enterprise.
Once these plans and reports are approved, the contractor is bound to
comply with its commitments therein. Figures for mineral production and sales
are regularly monitored and subjected to government review, in order to ensure
that the products and by-products are disposed of at the best prices possible; even
copies of sales agreements have to be submitted to and registered with
MGB. And the contractor is mandated to open its books of accounts and records
for scrutiny, so as to enable the State to determine if the government share has
been fully paid.
The State may likewise compel the contractors compliance with
mandatory requirements on mine safety, health and environmental protection, and
the use of anti-pollution technology and facilities. Moreover, the contractor is
also obligated to assist in the development of the mining community and to pay
royalties to the indigenous peoples concerned.
Cancellation of the FTAA may be the penalty for violation of any of its
terms and conditions and/or noncompliance with statutes or regulations. This
general, all-around, multipurpose sanction is no trifling matter, especially to a
contractor who may have yet to recover the tens or hundreds of millions of dollars
sunk into a mining project.
Overall, considering the provisions of the statute and the regulations just
discussed, we believe that the State definitely possesses the means by which it can
have the ultimate word in the operation of the enterprise, set directions and
objectives, and detect deviations and noncompliance by the contractor; likewise,
it has the capability to enforce compliance and to impose sanctions, should the
occasion therefor arise.
In other words, the FTAA contractor is not free to do whatever it pleases
and get away with it; on the contrary, it will have to follow the government line if
it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-40 vest
in the government more than a sufficient degree of control and supervision over
the conduct of mining operations.

Fourth Substantive Issue: The Proper Interpretation of the Constitutional

Phrase Agreements Involving Either Technical or Financial Assistance
In interpreting the first and fourth paragraphs of Section 2, Article XII of the
Constitution, petitioners set forth the argument that foreign corporations are barred
from making decisions on the conduct of operations and the management of the
mining project. The first paragraph of Section 2, Article XII reads:

x x x The exploration, development, and utilization of natural resources

shall be under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint
venture, or production sharing agreements with Filipino citizens, or corporations
or associations at least sixty percentum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty five years,
renewable for not more than twenty five years, and under such terms and
conditions as may be provided by law x x x.

The fourth paragraph of Section 2, Article XII provides:

The President may enter into agreements with foreign-owned corporations
involving either technical or financial assistance for large scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country x x x.

Petitioners maintain that the first paragraph bars aliens and foreign-owned
corporations from entering into any direct arrangement with the government
including those which involve co-production, joint venture or production sharing
agreements. They likewise insist that the fourth paragraph allows foreign-owned
corporations to participate in the large-scale exploration, development and
utilization of natural resources, but such participation, however, is merely limited
to an agreement for either financial or technical assistance only.
Again, this issue has already been succinctly passed upon by this Court
in La Bugal-BLaan Tribal Association, Inc. v. Ramos.[55] In discrediting such
argument, the Court ratiocinated:
Petitioners claim that the phrase agreements x x x involving either
technical or financial assistance simply means technical assistance or financial
assistance agreements, nothing more and nothing else. They insist that there is no
ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above
leads to the inescapable conclusion that what a foreign-owned corporation may
enter
into
with
the
government
is
merely
an
agreement
for either financial or technical assistance only, for the large-scale exploration,
development and utilization of minerals, petroleum and other mineral oils; such a
limitation, they argue, excludes foreign management and operation of a mining
enterprise.
This restrictive interpretation, petitioners believe, is in line with the
general policy enunciated by the Constitution reserving to Filipino citizens and
corporations the use and enjoyment of the countrys natural resources. They
maintain that this Courts Decision of January 27, 2004 correctly declared the
WMCP FTAA, along with pertinent provisions of RA 7942, void for allowing a
foreign contractor to have direct and exclusive management of a mining

enterprise. Allowing such a privilege not only runs counter to the full control
and supervision that theState is constitutionally mandated to exercise over the
exploration, development and utilization of the countrys natural resources; doing
so also vests in the foreign company beneficial ownership of our mineral
resources. It will be recalled that the Decision of January 27, 2004 zeroed in on
management or other forms of assistance or other activities associated with the
service contracts of the martial law regime, since the management or
operation of mining activities by foreign contractors, which is the primary feature
of service contracts, was precisely the evil that the drafters of the 1987
Constitution sought to eradicate.
xxxx
We do not see how applying a strictly literal or verba legis interpretation
of paragraph 4 could inexorably lead to the conclusions arrived at in
the ponencia. First, the drafters choice of words -- their use of the
phrase agreements x x x involving either technical or financial assistance -- does
not indicate the intent to exclude other modes of assistance. The drafters opted to
useinvolving when they could have simply said agreements for financial or
technical assistance, if that was their intention to begin with. In this case, the
limitation would be very clear and no further debate would ensue.
In contrast, the use of the word involving signifies the possibility of the
inclusion of other forms of assistance or activities having to do with, otherwise
related to or compatible with financial or technical assistance. The word
involving as used in this context has three connotations that can be
differentiated thus: one, the sense of concerning, having to do with, or
affecting; two, entailing, requiring, implying or necessitating;
and three, including, containing or comprising.
Plainly, none of the three connotations convey a sense of
exclusivity. Moreover, the word involving, when understood in the sense of
including, as in including technical or financial assistance, necessarily implies
that there are activities other than those that are being included. In other words, if
an agreement includes technical or financial assistance, there is apart from such
assistance -- something else already in, and covered or may be covered by, the
said agreement.
In short, it allows for the possibility that matters, other than those
explicitly mentioned, could be made part of the agreement. Thus, we are now led
to the conclusion that the use of the word involving implies that these
agreements with foreign corporations are not limited to mere financial or
technical assistance. The difference in sense becomes very apparent when we
juxtapose agreements for technical or financial assistance against
agreements including technical or financial assistance. This much is
unalterably clear in a verba legis approach.
Second, if the real intention of the drafters was to confine foreign
corporations to financial or technical assistance and nothing more, their language
would have certainly been sounmistakably restrictive and stringent as to leave no
doubt in anyones mind about their true intent. For example, they would have
used the sentence foreign corporations are absolutely prohibited from
involvement in the management or operation of mining or similar ventures or
words of similar import. A search for such stringent wording yields negative
results. Thus, we come to the inevitable conclusion that there was a conscious

and deliberate decision to avoid the use of restrictive wording that bespeaks an
intent not to use the expression agreements xx x involving either technical or
financial assistance in an exclusionary and limiting manner.

Fifth Substantive Issue: Service Contracts Not Deconstitutionalized

Lastly, petitioners stress that the service contract regime under the 1973
Constitution is expressly prohibited under the 1987 Constitution as the term
service contracts found in the former was deleted in the latter to avoid the
circumvention of constitutional prohibitions that were prevalent in the 1987
Constitution. According to them, the framers of the 1987 Constitution only
intended for foreign-owned corporations to provide either technical assistance or
financial assistance. Upon perusal of the CAMC FTAA, petitioners are of the
opinion that the same is a replica of the service contract agreements that the
present constitution allegedly prohibit.

Again, this contention is not well-taken. The mere fact that the term service
contracts found in the 1973 Constitution was not carried over to the present
constitution, sans any categorical statement banning service contracts in mining
activities, does not mean that service contracts as understood in the 1973
Constitution was eradicated in the 1987 Constitution.[56] The 1987 Constitution
allows the continued use of service contracts with foreign corporations as
contractors who would invest in and operate and manage extractive enterprises,
subject to the full control and supervision of the State; this time, however, safety
measures were put in place to prevent abuses of the past regime.[57] We ruled, thus:
To our mind, however, such intent cannot be definitively and conclusively
established from the mere failure to carry the same expression or term over to the
new Constitution, absent a more specific, explicit and unequivocal statement to
that effect. What petitioners seek (a complete ban on foreign participation in the
management of mining operations, as previously allowed by the earlier
Constitutions) is nothing short of bringing about a momentous sea change in the
economic and developmental policies; and the fundamentally capitalist, freeenterprise philosophy of our government. We cannot imagine such a radical
shift being undertaken by our government, to the great prejudice of the mining
sector in particular and our economy in general, merely on the basis of
the omission of the terms service contract from or the failure to carry them over to
the new Constitution. There has to be a much more definite and even unarguable
basis for such a drastic reversal of policies.
xxxx
The foregoing are mere fragments of the framers lengthy discussions of
the provision dealing with agreements x x x involving either technical or financial

assistance, which ultimately became paragraph 4 of Section 2 of Article XII of

the Constitution. Beyond any doubt, the members of the ConCom were actually
debating about the martial-law-era service contracts for which they were
crafting appropriate safeguards.
In the voting that led to the approval of Article XII by the ConCom, the
explanations given by Commissioners Gascon, Garcia and Tadeo indicated that
they had voted to reject this provision on account of their objections to the
constitutionalization of the service contract concept.
Mr. Gascon said, I felt that if we would constitutionalize any provision
on service contracts, this should always be with the concurrence of Congress and
not guided only by a general law to be promulgated by Congress. Mr. Garcia
explained, Service contracts are given constitutional legitimization in Sec. 3,
even when they have been proven to be inimical to the interests of the nation,
providing, as they do, the legal loophole for the exploitation of our natural
resources
for
the
benefit
of
foreign
interests. Likewise,
Mr. Tadeo cited inter alia the fact that service contracts continued to subsist,
enabling foreign interests to benefit from our natural resources. It was hardly
likely that these gentlemen would have objected so strenuously, had the
provision called for mere technical or financial assistance and nothing more.
The deliberations of the ConCom and some commissioners explanation
of their votes leave no room for doubt that the service contract concept precisely
underpinned the commissioners understanding of the agreements involving
either technical or financial assistance.
xxxx
From the foregoing, we are impelled to conclude that the
phrase agreements involving either technical or financial assistance, referred to in
paragraph 4, are in fact service contracts. But unlike those of the 1973 variety,
the new ones are between foreign corporations acting as contractors on the one
hand; and on the other, the government as principal or owner of the works. In
the new service contracts, the foreign contractors provide capital, technology and
technical know-how, and managerial expertise in the creation and operation of
large-scale mining/extractive enterprises; and the government, through its
agencies (DENR, MGB), actively exercises control and supervision over the
entire operation.
xxxx
It is therefore reasonable and unavoidable to make the following
conclusion, based on the above arguments. As written by the framers and ratified
and adopted by the people, the Constitution allows the continued use of service
contracts with foreign corporations -- as contractors who would invest in and
operate and manage extractive enterprises, subject to the fullcontrol and
supervision of the State -- sans the abuses of the past regime. The purpose is
clear: to develop and utilize our mineral, petroleum and other resources on a large
[58]
scale for the immediate and tangible benefit of the Filipino people.

WHEREFORE, the instant petition for prohibition and mandamus is hereby

DISMISSED. Section 76 of Republic Act No. 7942 and Section 107 of DAO 96-

40; Republic Act No. 7942 and its Implementing Rules and Regulations contained
in DAO 96-40 insofar as they relate to financial and technical assistance
agreements referred to in paragraph 4 of Section 2 of Article XII of the
Constitution are NOT UNCONSTITUTIONAL.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]

Rollo, pp. 595-596.

Velarde v. Social Justice Society, G.R. No. 159357, 28 April 2004, 428 SCRA 283, 291.
[3]
PHILIPPINE POLITICAL LAW, Isagani Cruz, p. 23 (1995 ed.).
[4]
Article VIII, Section 1.xxx Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
[5]
Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 425 (1998).
[6]
Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1206 (1996).
[7]
Intregrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-633 (2000).
[8]
Dumlao v. Commission on Elections, G.R. No. L-52245, 22 January 1980, 95 SCRA 392, 402.
[9]
Integrated Bar of the Philippines v. Zamora, supra note 7, p. 633.
[10]
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 128 Phil. 473, 480481 (1967).
[11]
Cruz v. Secretary of Environment & Natural Resources, G.R. No. 135385, 6 December 2000, 347 SCRA
128, 256.
[12]
391 Phil. 84 (2000).
[13]
Id., p. 107.
[14]
La Bugal-BLaan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 27 January 2004, 421 SCRA 148,
179.
[15]
157 Phil. 329, 344 (1974). It defines taking under the concept of eminent domain as entering upon
private property for more than a momentary period, and, under the warrant or color of legal authority,
devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment thereof.
[16]
G.R. No. 60077, 18 January 1991, 193 SCRA 1, 7.
[17]
Robern Development Corporation v. Quitain, 373 Phil. 773, 792-793 (1999).
[18]
U.S. v. Toribio, 15 Phil. 85, 93 (1910); Rubi v. The Provincial Board of Mindoro, 39 Phil. 660, 708
(1919).
[19]
Association of Small Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No.
78742, 14 July 1989, 175 SCRA 343, 371.
[20]
U.S. v. Toribio, supra note 18, p. 370.
[21]
People v. Chan, 65 Phil. 611 (1938).
[22]
Supra note 18, p. 97.
[23]
90 Phil. 132 (1951).
[24]
56 Phil. 204 (1931).
[25]
THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY,
Bernas, p. 420.
[26]
Id.
[27]
Id., p. 421.
[28]
Id.
[29]
Id.
[30]
207 Phil. 648 (1983).
[31]
104 Phil. 443 (1958).
[32]
THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, supra note 24, p. 422.
[33]
CONSTITUTIONAL LAW, Cruz, p. 66 (1995 ed.).
[34]
9 Phil. 215, 221 (1907).
[2]

[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
[48]

[49]
[50]
[51]

[52]
[53]
[54]
[55]
[56]
[57]
[58]

Supra note 16.

136 Phil. 20 (1969).
Id., pp. 29-30.
Supra note 15, pp. 345-347.
Valera v. Tuason, Jr., 80 Phil. 823, 827 (1998).
United States v. Palacio, 33 Phil. 208, 216 (1916).
Id.
Heirs of Juancho Ardona v. Reyes, 210 Phil. 187, 197 (1983).
Id.
Id., p. 198.
Executive Order No. 211.
Supra note 42.
Id., p. 201.
La Bugal-BLaan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 1 December 2004, 445 SCRA 1,
228.
Id., p. 150.
G.R. No. L-59603, 29 April 1987, 149 SCRA 305, 312.
Section 211 of DAO 96-40 provides: The decision of the Board may be reviewed by filing a petition for
review with the Supreme Court within thirty (30) days from receipt of the order or decision of the Board.
Philippine Veterans Bank v. Court of Appeals, 379 Phil. 141, 147 (2000).
Id., p. 149.
Supra note 48, pp. 132-137.
Id., pp. 101-105.
Id.
Id.
Id., pp. 105-128.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon
City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of
Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null
and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall
be set aside for charity burial of deceased persons who are paupers and have been
residents of Quezon City for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall immediately be developed
and should be open for operation not later than six months from the date of approval
of the application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but
seven years after the enactment of the ordinance, the Quezon City Council passed the following
resolution:
RESOLVED by the council of Quezon assembled, to request, as it does hereby
request the City Engineer, Quezon City, to stop any further selling and/or transaction
of memorial park lots in Quezon City where the owners thereof have failed to donate
the required 6% space intended for paupers burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in
writing that Section 9 of Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII
at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction
(Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent
alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy
Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and
respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore,
rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City Council filed the
instant petition.
Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is authorized under its charter, in the
exercise of local police power, " to make such further ordinances and resolutions not repugnant to
law as may be necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of
property is obvious because the questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use
of his property.
The respondent also stresses that the general welfare clause is not available as a source of power
for the taking of the property in this case because it refers to "the power of promoting the public
welfare by restraining and regulating the use of liberty and property." The respondent points out that
if an owner is deprived of his property outright under the State's police power, the property is
generally not taken for public use but is urgently and summarily destroyed in order to promote the
general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to
prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge to be
well-founded. We quote with approval the lower court's ruling which declared null and void Section 9
of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police
power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal
any provision that would justify the ordinance in question except the provision
granting police power to the City. Section 9 cannot be justified under the power
granted to Quezon City to tax, fix the license fee, and regulatesuch other business,
trades, and occupation as may be established or practised in the City.' (Subsections
'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs. Esguerra,
81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law,
70, Mich. 396). A fortiori, the power to regulate does not include the power to
confiscate. The ordinance in question not only confiscates but also prohibits the
operation of a memorial park cemetery, because under Section 13 of said ordinance,
'Violation of the provision thereof is punishable with a fine and/or imprisonment and
that upon conviction thereof the permit to operate and maintain a private cemetery
shall be revoked or cancelled.' The confiscatory clause and the penal provision in
effect deter one from operating a memorial park cemetery. Neither can the ordinance
in question be justified under sub- section "t", Section 12 of Republic Act 537 which
authorizes the City Council to'prohibit the burial of the dead within the center of population of the
city and provide for their burial in such proper place and in such
manner as the council may determine, subject to the provisions of the

general law regulating burial grounds and cemeteries and governing

funerals and disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act
No. 537).
There is nothing in the above provision which authorizes confiscation or as
euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in question
is a valid exercise of police power. The police power of Quezon City is defined in
sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant
to law as may be necessary to carry into effect and discharge the
powers and duties conferred by this act and such as it shall deem
necessary and proper to provide for the health and safety, promote,
the prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe under
the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles. Occupying the
forefront in the bill of rights is the provision which states that 'no person shall be
deprived of life, liberty or property without due process of law' (Art. Ill, Section 1
subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which the state
interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3)
taxation. These are said to exist independently of the Constitution as necessary
attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public welfare by
restraining and regulating the use of liberty and property' (Quoted in Political Law by
Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate
the use and enjoyment of property of the owner. If he is deprived of his property
outright, it is not taken for public use but rather to destroy in order to promote the
general welfare. In police power, the owner does not recover from the government
for injury sustained in consequence thereof (12 C.J. 623). It has been said that police
power is the most essential of government powers, at times the most insistent, and
always one of the least limitable of the powers of government (Ruby vs. Provincial
Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL 104).
The Supreme Court has said that police power is so far-reaching in scope that it has
almost become impossible to limit its sweep. As it derives its existence from the very
existence of the state itself, it does not need to be expressed or defined in its scope.
Being coextensive with self-preservation and survival itself, it is the most positive and
active of all governmental processes, the most essential insistent and illimitable
Especially it is so under the modern democratic framework where the demands of
society and nations have multiplied to almost unimaginable proportions. The field and
scope of police power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and have transcended
human foresight. Since the Courts cannot foresee the needs and demands of public
interest and welfare, they cannot delimit beforehand the extent or scope of the police
power by which and through which the state seeks to attain or achieve public interest
and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and the due
process clause being the broadest station on governmental power, the conflict

between this power of government and the due process clause of the Constitution is
oftentimes inevitable.
It will be seen from the foregoing authorities that police power is usually exercised in
the form of mere regulation or restriction in the use of liberty or property for the
promotion of the general welfare. It does not involve the taking or confiscation of
property with the exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting the peace and
order and of promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon
City is not a mere police regulation but an outright confiscation. It deprives a person
of his private property without due process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation whether national or local
As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve
every presumption in favor of validity and, more so, where the ma corporation asserts that the
ordinance was enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of
Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence to offset
the presumption of validity that attaches to a statute or ordinance. As was expressed
categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The
action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their
particular ... municipality and with all the facts and lances which surround the subject
and necessitate action. The local legislative body, by enacting the ordinance, has in
effect given notice that the regulations are essential to the well-being of the people.
... The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation.
(U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an affirmation of the
presumption of validity of municipal ordinance as announced in the leading Salaveria
decision in Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v. Board of
Health supra :
... Under the provisions of municipal charters which are known as the general welfare
clauses, a city, by virtue of its police power, may adopt ordinances to the peace,
safety, health, morals and the best and highest interests of the municipality. It is a
well-settled principle, growing out of the nature of well-ordered and society, that
every holder of property, however absolute and may be his title, holds it under the
implied liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the rights of
the community. An property in the state is held subject to its general regulations,
which are necessary to the common good and general welfare. Rights of property,
like all other social and conventional rights, are subject to such reasonable limitations
in their enjoyment as shall prevent them from being injurious, and to such reasonable
restraints and regulations, established by law, as the legislature, under the governing
and controlling power vested in them by the constitution, may think necessary and
expedient. The state, under the police power, is possessed with plenary power to
deal with all matters relating to the general health, morals, and safety of the people,
so long as it does not contravene any positive inhibition of the organic law and

providing that such power is not exercised in such a manner as to justify the
interference of the courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area
of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking
without compensation of a certain area from a private cemetery to benefit paupers who are charges
of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose,
the city passes the burden to private cemeteries.
The expropriation without compensation of a portion of private cemeteries is not covered by Section
12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the city and to provide for their burial
in a proper place subject to the provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a
Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner
as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or
to buy or expropriate private properties to construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The beneficiaries of the regulation, in
turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of
the municipal corporation, not on any express provision of law as statutory basis of their exercise of
power. The clause has always received broad and liberal interpretation but we cannot stretch it to
cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang
Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating.
The sequestration of six percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the permits to commence
operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is
affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-42571-72 July 25, 1983
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA
CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA,
HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN,
DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES,
LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN,
ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL,petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.

FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their
rights to due process and equal protection of the laws were violated as the licenses previously given to
them was in effect withdrawn without judicial hearing. 2

The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall
be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2.
Definitions of Terms (a) 'Night Club' shall include any place or establishment selling to the public food
or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or
establishment where dancing is permitted to the public and where professional hostesses or hospitality
girls and professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include
any woman employed by any of the establishments herein defined to entertain guests and customers at
their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of
the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by
the persons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person
who operates and is responsible for the operation of any night club, cabaret or dance hall. Section 3.
Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the
decadence of morality and because of their other adverse effects on this community as explained above,
no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate
within the jurisdiction of the municipality and no license/permit shall be issued to any professional
hostess, hospitality girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and
Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which
are now in operation including permits issued to professional hostesses, hospitality girls and professional
dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section
8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality
shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this
Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding
P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person

charged with the management and/or operation thereof shall be liable for the penalty provided herein.
Section 6. Separability Clause. If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7.
Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This
Ordinance shall take effect immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and
professional dancers are given a period of thirty days from the approval hereof within which to wind up
their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court
of First Instance of Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of
the law, as the license previously given to petitioners was in effect withdrawn without judicial
hearing. 3. That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259,
the power to license and regulate tourist-oriented businesses including night clubs, has been
transferred to the Department of Tourism." 6 The cases were assigned to respondent Judge, now
Associate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on November
7, 1975. The answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is
authorized by law not only to regulate but to prohibit the establishment, maintenance and operation of
night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The
Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection of the law,
since property rights are subordinate to public interests. 3. That Presidential Decree No. 189, as
amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night
clubs." 7There was the admission of the following facts as having been established: "l. That petitioners
Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal
Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960;
petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That petitioners had
invested large sums of money in their businesses; 3. That the night clubs are well-lighted and have no
partitions, the tables being near each other; 4. That the petitioners owners/operators of these clubs do not
allow the hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these
hospitality girls are made to go through periodic medical check-ups and not one of them is suffering from
any venereal disease and that those who fail to submit to a medical check-up or those who are found to
be infected with venereal disease are not allowed to work; 6. That the crime rate there is better than in
other parts of Bocaue or in other towns of Bulacan." 8 Then came on January 15, 1976 the decision
upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases. Hence this
petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is
set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the
Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual
titillation and fearful of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night
clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution,
hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a
conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify
the enactment of the assailed ordinance. It must be declared null and void.

1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall enact such
ordinances and make such regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon it by law and such as shall seem

necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for
the Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.
Where the power to legislate upon a given subject, and the mode of its exercise and the details of such
legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of
the power, or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code
provision was applied, it was stated by this Court: "The general welfare clause has two branches: One
branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon
the municipal council by law. With this class we are not here directly concerned. The second branch of
the clause is much more independent of the specific functions of the council which are enumerated by
law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare clause must be
reasonable, consonant with the general powersand purposes of the corporation, and not inconsistent with
the laws or policy of the State." 15 If night clubs were merely then regulated and not prohibited, certainly
the assailed ordinance would pass the test of validity. In the two leading cases above set forth, this Court
had stressed reasonableness, consonant with the general powers and purposes of municipal
corporations, as well as consistency with the laws or policy of the State. It cannot be said that such a
sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The
objective of fostering public morals, a worthy and desirable end can be attained by a measure that does
not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The
purpose sought to be achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set
aside legislative action when there is not a clear invasion of personal or property rights under the guise of
police regulation." 16 It is clear that in the guise of a police regulation, there was in this instance a clear
invasion of personal or property rights, personal in the case of those individuals desirous of patronizing
those night clubs and property in terms of the investments made and salaries to be earned by those
therein employed.

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally
enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION
OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city board or council of
each chartered city shall have the power to regulate by ordinance the establishment, maintenance and
operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its territorial jurisdiction: ... " 19 Then on May
21, 1954, the first section was amended to include not merely "the power to regulate, but likewise
"Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is
to be admitted that as thus amended, if only the above portion of the Act were considered, a municipal
council may go as far as to prohibit the operation of night clubs. If that were all, then the appealed
decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It
was not changed one whit. The exact wording was followed. The power granted remains that
of regulation, notprohibition. There is thus support for the view advanced by petitioners that to construe
Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall embrace only one subject which shall
be expressed in the title thereof. " 21 Since there is no dispute as the title limits the power to regulating,
not prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue,
the operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory
power "to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language
of the Administrative Code, such competence extending to all "the great public needs, 23 to quote from
Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled
principle of constitutional construction that between two possible interpretations by one of which it will be
free from constitutional infirmity and by the other tainted by such grave defect, the former is to be

preferred. A construction that would save rather than one that would affix the seal of doom certainly
commends itself. We have done so before We do so again. 24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recentlyenacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative
Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as may
be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition provisions
that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses,
except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory power of the Ministry
of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the
municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage
parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..." 27It is clear that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented from carrying on their business. It would be,
therefore, an exercise in futility if the decision under review were sustained. All that petitioners would
have to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because
no such businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of
an affirmance, would amount to no more than a temporary termination of their business. During such
time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome
can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus,
then the element of arbitrariness enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal
forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from
the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to
measures that can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not
prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an
end to practices which could encourage vice and immorality. This is an entirely different case. What was
involved is a measure not embraced within the regulatory power but an exercise of an assumed power to
prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators
Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear
that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if
the power to enact such ordinance is at the most dubious and under the present Local Government Code
non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15,
1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is
hereby made permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez,
Jr., JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

Footnotes
1 Municipal Mayor Matias Ramirez and Municipal Vice-Mayor Mario Mendoza.
2 Petition, 7. The other question raised was the jurisdiction of a municipal council to
prohibit the operation of nightclubs, it being alleged that the power of regulating
tourist-oriented businesses being granted to the then Department, now Ministry, of
Tourism.
3 Ordinance No. 84, Series of 1975.
4 Ibid.
5 Vicente de la Cruz, et al. v. Matias Ramirez, et al., and Teresita Calot, et al. v. The
Municipal Mayor, docketed as Civil Cases Nos. 4755-M and 4756-M, respectively.
On November 21, 1975, the petition in one of the above cases was amended to raise
the further issue of lack of authority of respondent Municipal Officials to pass the
ordinance in question, since the power to license, supervise and regulate night clubs
has been transferred to the Department of Tourism by virtue of Presidential Decree
No. 189, as amended.
6 Petition, 7.
7 Ibid, 8.
8 Ibid, 8-9.
9 Decision, Annex A to Petition 1.
10 Section 2238, Revised Administrative Code of the Philippines (1917).
11 Act No. 82 (1901).
12 24 Phil. 165 (1913). Abendan is followed in United States v. Tamparong, 31 Phil.
321 (1915); United States v. Gaspay, 33 Phil. 96 (1915) and Sarmiento v. Balderol,
112 Phil. 394 (1961).
13 Ibid, 168. Cf. United States v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health,
24 Phil. 250 (1913).
14 39 Phil. 102 (1918).
15 Ibid, 109-110.
16 Ibid, 111. In Salaveria though the ordinance penalizing the playing
of panguingue on days not Sundays or legal holidays was declared as valid.
17 It was amended by Republic Act No. 979 and Republic Act No. 1224.
18 Title of Republic Act No. 938 as amended.
19 Republic Act No. 938, Section 1.
20 Republic Act No. 979, Section 1.

21 Article VIII, Section 19, par. 1 of the Constitution.

22 Section 2238.
23 Otis v. Parker, 187 US 606 (1902).
24 Cf. Nuez v. Sandiganbayan, G.R. Nos. 50581-50617, January 30, 1982, 111
SCRA 433. Separate opinion of Justice Makasiar. De la Llana v. Alba, G.R. No.
57883, March 12,1982,112 SCRA 294.
25 Batas Pambansa Blg. 337 (1983). Under Section 234 of the Code it took effect
one month after its publication in the Official Gazette. It was published in the issue of
February 14,1983.
26 Ibid, Section 149 (1) (a).
27 Ibid, Section 149 (1) (rr, ss and tt ).
28 L-24693, 20 SCRA 849, July 31, 1967.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-11390

March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,

vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendantappellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to foreclose a
mortgage upon various parcels of real property situated in the city of Manila. The mortgage in
question is dated June 16, 1906, and was executed by the original defendant herein, Engracio
Palanca Tanquinyeng y Limquingco, as security for a debt owing by him to the bank. Upon March
31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum
per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that
time estimated the value of the property in question at P292,558, which was about P75,000 in
excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to
China which appears to have been his native country; and he there died, upon January 29, 1810,
without again returning to the Philippine Islands.
As the defendant was a nonresident at the time of the institution of the present action, it was
necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication
pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly
obtained from the court, and publication was made in due form in a newspaper of the city of Manila.
At the same time that the order of the court should deposit in the post office in a stamped envelope a
copy of the summons and complaint directed to the defendant at his last place of residence, to wit,
the city of Amoy, in the Empire of China. This order was made pursuant to the following provision
contained in section 399 of the Code of Civil Procedure:
In case of publication, where the residence of a nonresident or absent defendant is known,
the judge must direct a copy of the summons and complaint to be forthwith deposited by the
clerk in the post-office, postage prepaid, directed to the person to be served, at his place of
residence
Whether the clerk complied with this order does not affirmatively appear. There is, however, among
the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y
Garcia, an employee of the attorneys of the bank, showing that upon that date he had deposited in
the Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila,
containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court
directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably
used an envelope obtained from the clerk's office, as the receipt purports to show that the letter
emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the defendant not having
appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a
decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been
properly made in a periodical, but nothing was said about this notice having been given mail. The
court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355. 32,
with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or

before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of
the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment
within such period, the mortgage property located in the city of Manila should be exposed to public
sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court
ordered the sale of the property. The sale took place upon July 30, 1908, and the property was
bought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the
court.
About seven years after the confirmation of this sale, or to the precise, upon June 25, 1915, a motion
was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant,
Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside
the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all
the proceedings subsequent thereto. The basis of this application, as set forth in the motion itself,
was that the order of default and the judgment rendered thereon were void because the court had
never acquired jurisdiction over the defendant or over the subject of the action.
At the hearing in the court below the application to vacate the judgment was denied, and from this
action of the court Vicente Planca, as administrator of the estate of the original defendant, has
appealed. No other feature of the case is here under consideration than such as related to the action
of the court upon said motion.
The case presents several questions of importance, which will be discussed in what appears to be
the sequence of most convenient development. In the first part of this opinion we shall, for the
purpose of argument, assume that the clerk of the Court of First Instance did not obey the order of
the court in the matter of mailing the papers which he was directed to send to the defendant in
Amoy; and in this connection we shall consider, first, whether the court acquired the necessary
jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those
proceedings were conducted in such manner as to constitute due process of law.
The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several
different, though related, senses since it may have reference (1) to the authority of the court to
entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the
power of the court over the parties, or (2) over the property which is the subject to the litigation.
The sovereign authority which organizes a court determines the nature and extent of its powers in
general and thus fixes its competency or jurisdiction with reference to the actions which it may
entertain and the relief it may grant.
Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his
submission to its authority, or it is acquired by the coercive power of legal process exerted over the
person.
Jurisdiction over the property which is the subject of the litigation may result either from a seizure of
the property under legal process, whereby it is brought into the actual custody of the law, or it may
result from the institution of legal proceedings wherein, under special provisions of law, the power of
the court over the property is recognized and made effective. In the latter case the property, though
at all times within the potential power of the court, may never be taken into actual custody at all. An
illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings, where
the property is seized at the beginning of the action, or some subsequent stage of its progress, and
held to abide the final event of the litigation. An illustration of what we term potential jurisdiction over
the res, is found in the proceeding to register the title of land under our system for the registration of
land. Here the court, without taking actual physical control over the property assumes, at the
instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and
to adjudicate the title in favor of the petitioner against all the world.
In the terminology of American law the action to foreclose a mortgage is said to be a proceeding
quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet
it partakes of that nature and is substantially such. The expression "action in rem" is, in its narrow
application, used only with reference to certain proceedings in courts of admiralty wherein the

property alone is treated as responsible for the claim or obligation upon which the proceedings are
based. The action quasi rem differs from the true action in rem in the circumstance that in the former
an individual is named as defendant, and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property. All proceedings having for their sole object
the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or
other form of remedy, are in a general way thus designated. The judgment entered in these
proceedings is conclusive only between the parties.
In speaking of the proceeding to foreclose a mortgage the author of a well known treaties, has said:
Though nominally against person, such suits are to vindicate liens; they proceed upon
seizure; they treat property as primarily indebted; and, with the qualification abovementioned, they are substantially property actions. In the civil law, they are styled
hypothecary actions, and their sole object is the enforcement of the lien against the res; in
the common law, they would be different in chancery did not treat the conditional
conveyance as a mere hypothecation, and the creditor's right ass an equitable lien; so, in
both, the suit is real action so far as it is against property, and seeks the judicial recognition
of a property debt, and an order for the sale of the res. (Waples, Proceedings In Rem. sec.
607.)
It is true that in proceedings of this character, if the defendant for whom publication is made appears,
the action becomes as to him a personal action and is conducted as such. This, however, does not
affect the proposition that where the defendant fails to appear the action is quasi in rem; and it
should therefore be considered with reference to the principles governing actions in rem.
There is an instructive analogy between the foreclosure proceeding and an action of attachment,
concerning which the Supreme Court of the United States has used the following language:
If the defendant appears, the cause becomes mainly a suit in personam, with the added
incident, that the property attached remains liable, under the control of the court, to answer
to any demand which may be established against the defendant by the final judgment of the
court. But, if there is no appearance of the defendant, and no service of process on him, the
case becomes, in its essential nature, a proceeding in rem, the only effect of which is to
subject the property attached to the payment of the defendant which the court may find to be
due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is not personally served, the preliminary
seizure is to, be considered necessary in order to confer jurisdiction upon the court. In this case the
lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the
property to that lien. If a lien already exists, whether created by mortgage, contract, or statute, the
preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner
provided by law precisely as though the property had been seized upon attachment. (Roller vs.
Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in an
attachment the property may be seized at the inception of the proceedings, while in the foreclosure
suit it is not taken into legal custody until the time comes for the sale, does not materially affect the
fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction
over the property in a proceeding directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage
foreclosure, it is evident that the court derives its authority to entertain the action primarily from the
statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause
of action is obvious and requires no comment. Jurisdiction over the person of the defendant, if
acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the
personal service of process upon him within the territory where the process is valid. If, however, the
defendant is a nonresident and, remaining beyond the range of the personal process of the court,
refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the
property itself is in fact the sole thing which is impleaded and is the responsible object which is the
subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is
based exclusively on the power which, under the law, it possesses over the property; and any

discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart
from the case. The jurisdiction of the court over the property, considered as the exclusive object of
such action, is evidently based upon the following conditions and considerations, namely: (1) that the
property is located within the district; (2) that the purpose of the litigation is to subject the property by
sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the
proceedings takes the property into custody, if necessary, and expose it to sale for the purpose of
satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this
proceeding than such as can be enforced against the property.
We may then, from what has been stated, formulated the following proposition relative to the
foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and
submit himself personally to the jurisdiction of the court: (I) That the jurisdiction of the court is
derived from the power which it possesses over the property; (II) that jurisdiction over the person is
not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as
can be enforced against the property itself.
It is important that the bearing of these propositions be clearly apprehended, for there are many
expressions in the American reports from which it might be inferred that the court acquires personal
jurisdiction over the person of the defendant by publication and notice; but such is not the case. In
truth the proposition that jurisdiction over the person of a nonresident cannot be acquired by
publication and notice was never clearly understood even in the American courts until after the
decision had been rendered by the Supreme Court of the United States in the leading case of
Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision, and of other decisions
which have subsequently been rendered in that and other courts, the proposition that jurisdiction
over the person cannot be thus acquired by publication and notice is no longer open to question; and
it is now fully established that a personal judgment upon constructive or substituted service against a
nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive
or substituted process, including service by publication and personal service outside of the
jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case
where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note
to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the
tribunals of one State cannot run into other States or countries and that due process of law requires
that the defendant shall be brought under the power of the court by service of process within the
State, or by his voluntary appearance, in order to authorize the court to pass upon the question of
his personal liability. The doctrine established by the Supreme Court of the United States on this
point, being based upon the constitutional conception of due process of law, is binding upon the
courts of the Philippine Islands. Involved in this decision is the principle that in proceedings in rem or
quasi in rem against a nonresident who is not served personally within the state, and who does not
appear, the relief must be confined to the res, and the court cannot lawfully render a personal
judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs.
Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a
mortgage against a nonresident, upon whom service has been effected exclusively by publication,
no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg
vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in the court below offends
against the principle just stated and that this judgment is void because the court in fact entered a
personal judgment against the absent debtor for the full amount of the indebtedness secured by the
mortgage. We do not so interpret the judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases
of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil
Procedure, and to make an order requiring the defendant to pay the money into court. This step is a
necessary precursor of the order of sale. In the present case the judgment which was entered
contains the following words:

Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco,
is indebted in the amount of P249,355.32, plus the interest, to the 'Banco Espanol-Filipino' . .
. therefore said appellant is ordered to deliver the above amount etc., etc.
This is not the language of a personal judgment. Instead it is clearly intended merely as a
compliance with the requirement that the amount due shall be ascertained and that the evidence of
this it may be observed that according to the Code of Civil Procedure a personal judgment against
the debtor for the deficiency is not to be rendered until after the property has been sold and the
proceeds applied to the mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that whatever may be the effect in other respects of
the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in
Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our
opinion that jurisdiction rest upon a basis much more secure than would be supplied by any form of
notice that could be given to a resident of a foreign country.
Before leaving this branch of the case, we wish to observe that we are fully aware that many
reported cases can be cited in which it is assumed that the question of the sufficiency of publication
or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court is
sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly
originally adopted by the court because of the analogy between service by the publication and
personal service of process upon the defendant; and, as has already been suggested, prior to the
decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of
service was obscure. It is accordingly not surprising that the modes of expression which had already
been molded into legal tradition before that case was decided have been brought down to the
present day. But it is clear that the legal principle here involved is not effected by the peculiar
language in which the courts have expounded their ideas.
We now proceed to a discussion of the question whether the supposed irregularity in the
proceedings was of such gravity as to amount to a denial of that "due process of law" which was
secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed.
(Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional
provisions relating to due process of law the Supreme Court of the United States has refrained from
attempting to define with precision the meaning of that expression, the reason being that the idea
expressed therein is applicable under so many diverse conditions as to make any attempt ay precise
definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid
down with certainty that the requirement of due process is satisfied if the following conditions are
present, namely; (1) There must be a court or tribunal clothed with judicial power to hear and
determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the
defendant or over the property which is the subject of the proceeding; (3) the defendant must be
given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing.
Passing at once to the requisite that the defendant shall have an opportunity to be heard, we
observe that in a foreclosure case some notification of the proceedings to the nonresident owner,
prescribing the time within which appearance must be made, is everywhere recognized as essential.
To answer this necessity the statutes generally provide for publication, and usually in addition
thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly
called constructive, or substituted service of process in any true sense. It is merely a means
provided by law whereby the owner may be admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. In
speaking of notice of this character a distinguish master of constitutional law has used the following
language:
. . . if the owners are named in the proceedings, and personal notice is provided for, it is
rather from tenderness to their interests, and in order to make sure that the opportunity for a
hearing shall not be lost to them, than from any necessity that the case shall assume that
form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U. S., 79, 80.)

It will be observed that this mode of notification does not involve any absolute assurance that the
absent owner shall thereby receive actual notice. The periodical containing the publication may
never in fact come to his hands, and the chances that he should discover the notice may often be
very slight. Even where notice is sent by mail the probability of his receiving it, though much
increased, is dependent upon the correctness of the address to which it is forwarded as well as upon
the regularity and security of the mail service. It will be noted, furthermore, that the provision of our
law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally
and in every event, but only in the case where the defendant's residence is known. In the light of all
these facts, it is evident that actual notice to the defendant in cases of this kind is not, under the law,
to be considered absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means of notification which
may fall short of actual notice is apparently this: Property is always assumed to be in the possession
of its owner, in person or by agent; and he may be safely held, under certain conditions, to be
affected with knowledge that proceedings have been instituted for its condemnation and sale.
It is the duty of the owner of real estate, who is a nonresident, to take measures that in some
way he shall be represented when his property is called into requisition, and if he fails to do
this, and fails to get notice by the ordinary publications which have usually been required in
such cases, it is his misfortune, and he must abide the consequences. (6 R. C. L., sec. 445
[p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by legal process upon the constructive notice,
then our statutes were passed in vain, and are mere empty legislative declarations, without
either force, or meaning; for if the person is not within the jurisdiction of the court, no
personal judgment can be rendered, and if the judgment cannot operate upon the property,
then no effective judgment at all can be rendered, so that the result would be that the courts
would be powerless to assist a citizen against a nonresident. Such a result would be a
deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative to publication or other
form of notice against a nonresident owner should be complied with; and in respect to the publication
of notice in the newspaper it may be stated that strict compliance with the requirements of the law
has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U.
S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the
statute required 20, the publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of notice by mail, the
requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the
court, and it is not in terms declared that the notice must be deposited in the mail. We consider this
to be of some significance; and it seems to us that, having due regard to the principles upon which
the giving of such notice is required, the absent owner of the mortgaged property must, so far as the
due process of law is concerned, take the risk incident to the possible failure of the clerk to perform
his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or
destroy the parcel or envelope containing the notice before it should reach its destination and be
delivered to him. This idea seems to be strengthened by the consideration that placing upon the
clerk the duty of sending notice by mail, the performance of that act is put effectually beyond the
control of the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of the
Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court
made the order. The question as to what may be the consequences of the failure of the record to
show the proof of compliance with that requirement will be discussed by us further on.
The observations which have just been made lead to the conclusion that the failure of the clerk to
mail the notice, if in fact he did so fail in his duty, is not such an irregularity, as amounts to a denial of
due process of law; and hence in our opinion that irregularity, if proved, would not avoid the
judgment in this case. Notice was given by publication in a newspaper and this is the only form of

notice which the law unconditionally requires. This in our opinion is all that was absolutely necessary
to sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes a difference whether it be
viewed as a question involving jurisdiction or as a question involving due process of law. In the
matter of jurisdiction there can be no distinction between the much and the little. The court either has
jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a
step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that
the failure to take that step was fatal to the validity of the judgment. In the application of the idea of
due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction
being once established, all that due process of law thereafter requires is an opportunity for the
defendant to be heard; and as publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. We think that in applying the
requirement of due process of law, it is permissible to reflect upon the purposes of the provision
which is supposed to have been violated and the principle underlying the exercise of judicial power
in these proceedings. Judge in the light of these conceptions, we think that the provision of Act of
Congress declaring that no person shall be deprived of his property without due process of law has
not been infringed.
In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk
to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that
such irregularity did not infringe the requirement of due process of law. As a consequence of these
conclusions the irregularity in question is in some measure shorn of its potency. It is still necessary,
however, to consider its effect considered as a simple irregularity of procedure; and it would be idle
to pretend that even in this aspect the irregularity is not grave enough. From this point of view,
however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in
question must fail unless it shows that the defendant was prejudiced by that irregularity. The least,
therefore, that can be required of the proponent of such a motion is to show that he had a good
defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either
in the motion or in the affidavit which accompanies the motion.
An application to open or vacate a judgment because of an irregularity or defect in the proceedings
is usually required to be supported by an affidavit showing the grounds on which the relief is sought,
and in addition to this showing also a meritorious defense to the action. It is held that a general
statement that a party has a good defense to the action is insufficient. The necessary facts must be
averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious
defense is not necessary. (10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection
we quote the following passage from the encyclopedic treatise now in course of publication:
Where, however, the judgment is not void on its face, and may therefore be enforced if
permitted to stand on the record, courts in many instances refuse to exercise their quasi
equitable powers to vacate a judgement after the lapse of the term ay which it was entered,
except in clear cases, to promote the ends of justice, and where it appears that the party
making the application is himself without fault and has acted in good faith and with ordinary
diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for
refusing the relief to which he might otherwise be entitled. Something is due to the finality of
judgments, and acquiescence or unnecessary delay is fatal to motions of this character,
since courts are always reluctant to interfere with judgments, and especially where they have
been executed or satisfied. The moving party has the burden of showing diligence, and
unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor.
(15 R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died
January 29, 1910. The mortgage under which the property was sold was executed far back in 1906;
and the proceedings in the foreclosure were closed by the order of court confirming the sale dated
August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had
placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of

his life activities to end his days in the city of Amoy, China, should have long remained in ignorance
of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had
no knowledge of those proceedings while they were being conducted. It is more in keeping with the
ordinary course of things that he should have acquired information as to what was transpiring in his
affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of
proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his
property.
The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have
happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a
situation more appropriate than this for applying the presumption thus defined by the lawgiver. In
support of this presumption, as applied to the present case, it is permissible to consider the
probability that the defendant may have received actual notice of these proceedings from the
unofficial notice addressed to him in Manila which was mailed by an employee of the bank's
attorneys. Adopting almost the exact words used by the Supreme Court of the United States in
Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in view of the well-known
skill of postal officials and employees in making proper delivery of letters defectively addressed, we
think the presumption is clear and strong that this notice reached the defendant, there being no proof
that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila,
instead of being forwarded to Amoy, China, there is a probability that the recipient was a person
sufficiently interested in his affairs to send it or communicate its contents to him.
Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the
mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and
frivolous; but the considerations mentioned are introduced in order to show the propriety of applying
to this situation the legal presumption to which allusion has been made. Upon that presumption,
supported by the circumstances of this case, ,we do not hesitate to found the conclusion that the
defendant voluntarily abandoned all thought of saving his property from the obligation which he had
placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced
in the consequences of those proceedings after they had been accomplished. Under these
circumstances it is clear that the merit of this motion is, as we have already stated, adversely
affected in a high degree by the delay in asking for relief. Nor is it an adequate reply to say that the
proponent of this motion is an administrator who only qualified a few months before this motion was
made. No disability on the part of the defendant himself existed from the time when the foreclosure
was effected until his death; and we believe that the delay in the appointment of the administrator
and institution of this action is a circumstance which is imputable to the parties in interest whoever
they may have been. Of course if the minor heirs had instituted an action in their own right to recover
the property, it would have been different.
It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank
became the purchaser of the property at the foreclosure sale for a price greatly below that which had
been agreed upon in the mortgage as the upset price of the property. In this connection, it appears
that in article nine of the mortgage which was the subject of this foreclosure, as amended by the
notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that
the value therein placed upon the mortgaged properties should serve as a basis of sale in case the
debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in
that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the
appellant that when the bank bought in the property for the sum of P110,200 it violated that
stipulation.
It has been held by this court that a clause in a mortgage providing for a tipo, or upset price, does
not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings.
(Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson,
Sim and Co., 5 Phil. Rep., 418.) In both the cases here cited the property was purchased at the
foreclosure sale, not by the creditor or mortgagee, but by a third party. Whether the same rule
should be applied in a case where the mortgagee himself becomes the purchaser has apparently not
been decided by this court in any reported decision, and this question need not here be considered,
since it is evident that if any liability was incurred by the bank by purchasing for a price below that
fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and

as we have already demonstrated such a liability could not be the subject of adjudication in an action
where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became
liable to account for the difference between the upset price and the price at which in bought in the
property, that liability remains unaffected by the disposition which the court made of this case; and
the fact that the bank may have violated such an obligation can in no wise affect the validity of the
judgment entered in the Court of First Instance.
In connection with the entire failure of the motion to show either a meritorious defense to the action
or that the defendant had suffered any prejudice of which the law can take notice, we may be
permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial
proceedings long ago closed, can not be considered with favor, unless based upon grounds which
appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The
maximum here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a
member of the Supreme Court of the United States:
Public policy requires that judicial proceedings be upheld, and that titles obtained in those
proceedings be safe from the ruthless hand of collateral attack. If technical defects are
adjudged potent to destroy such titles, a judicial sale will never realize that value of the
property, for no prudent man will risk his money in bidding for and buying that title which he
has reason to fear may years thereafter be swept away through some occult and not readily
discoverable defect. (Martin vs. Pond, 30 Fed., 15.)
In the case where that language was used an attempt was made to annul certain foreclosure
proceedings on the ground that the affidavit upon which the order of publication was based
erroneously stated that the State of Kansas, when he was in fact residing in another State. It was
held that this mistake did not affect the validity of the proceedings.
In the preceding discussion we have assumed that the clerk failed to send the notice by post as
required by the order of the court. We now proceed to consider whether this is a proper assumption;
and the proposition which we propose to establish is that there is a legal presumption that the clerk
performed his duty as the ministerial officer of the court, which presumption is not overcome by any
other facts appearing in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a
presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that
there is a presumption "that the ordinary course of business has been followed." These
presumptions are of course in no sense novelties, as they express ideas which have always been
recognized. Omnia presumuntur rite et solemniter esse acta donec probetur in contrarium. There is
therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and
we think that strong considerations of policy require that this presumption should be allowed to
operate with full force under the circumstances of this case. A party to an action has no control over
the clerk of the court; and has no right to meddle unduly with the business of the clerk in the
performance of his duties. Having no control over this officer, the litigant must depend upon the court
to see that the duties imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion just stated. There is no
principle of law better settled than that after jurisdiction has once been required, every act of a court
of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every
judgment or decree rendered in the various stages of the proceedings from their initiation to their
completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent
with respect to any fact which must have been established before the court could have rightly acted,
it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs.
Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a decedent] the court are presumed to have
adjudged every question necessary to justify such order or decree, viz: The death of the
owners; that the petitioners were his administrators; that the personal estate was insufficient
to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale,
were within the constitutional power of the Legislature, and that all the provisions of the law

as to notices which are directory to the administrators have been complied with. . . . The
court is not bound to enter upon the record the evidence on which any fact was decided.
(Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long
lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an instructive
discussion in a case analogous to that which is now before us. It there appeared that in order to
foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that
publication should be made in a newspaper for a specified period of time, also be posted at the front
door of the court house and be published on some Sunday, immediately after divine service, in such
church as the court should direct. In a certain action judgment had been entered against a
nonresident, after publication in pursuance of these provisions. Many years later the validity of the
proceedings was called in question in another action. It was proved from the files of an ancient
periodical that publication had been made in its columns as required by law; but no proof was
offered to show the publication of the order at the church, or the posting of it at the front door of the
court-house. It was insisted by one of the parties that the judgment of the court was void for lack of
jurisdiction. But the Supreme Court of the United States said:
The court which made the decree . . . was a court of general jurisdiction. Therefore every
presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It
is to be presumed that the court before making its decree took care of to see that its order for
constructive service, on which its right to make the decree depended, had been obeyed.
It is true that in this case the former judgment was the subject of collateral , or indirect attack, while
in the case at bar the motion to vacate the judgment is direct proceeding for relief against it. The
same general presumption, however, is indulged in favor of the judgment of a court of general
jurisdiction, whether it is the subject of direct or indirect attack the only difference being that in case
of indirect attack the judgment is conclusively presumed to be valid unless the record affirmatively
shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain
cases be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court made its decree with the
knowledge that the requirements of law had been complied with appear to be amply sufficient to
support the conclusion that the notice was sent by the clerk as required by the order. It is true that
there ought to be found among the papers on file in this cause an affidavit, as required by section
400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no
such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of
the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the
face of such an omission. If we were to hold that the judgment in this case is void because the
proper affidavit is not present in the file of papers which we call the record, the result would be that in
the future every title in the Islands resting upon a judgment like that now before us would depend, for
its continued security, upon the presence of such affidavit among the papers and would be liable at
any moment to be destroyed by the disappearance of that piece of paper. We think that no court,
with a proper regard for the security of judicial proceedings and for the interests which have by law
been confided to the courts, would incline to favor such a conclusion. In our opinion the proper
course in a case of this kind is to hold that the legal presumption that the clerk performed his duty
still maintains notwithstanding the absence from the record of the proper proof of that fact.
In this connection it is important to bear in mind that under the practice prevailing in the Philippine
Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of
papers which contain the history of all the successive steps taken in a case and which are finally
deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general
information that no judgment roll, or book of final record, is commonly kept in our courts for the
purpose of recording the pleadings and principal proceedings in actions which have been
terminated; and in particular, no such record is kept in the Court of First Instance of the city of
Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of
final record shall be kept; but this provision has, as a matter of common knowledge, been generally
ignored. The result is that in the present case we do not have the assistance of the recitals of such a

record to enable us to pass upon the validity of this judgment and as already stated the question
must be determined by examining the papers contained in the entire file.
But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that
upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila,
Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty
and that, instead of himself sending the requisite notice through the mail, he relied upon Bernardo to
send it for him. We do not think that this is by any means a necessary inference. Of course if it had
affirmatively appeared that the clerk himself had attempted to comply with this order and had
directed the notification to Manila when he should have directed it to Amoy, this would be conclusive
that he had failed to comply with the exact terms of the order; but such is not this case. That the
clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken
address affords in our opinion very slight basis for supposing that the clerk may not have sent notice
to the right address.
There is undoubtedly good authority to support the position that when the record states the evidence
or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was
other or different evidence respecting the fact, or that the fact was otherwise than stated. If, to give
an illustration, it appears from the return of the officer that the summons was served at a particular
place or in a particular manner, it will not be presumed that service was also made at another place
or in a different manner; or if it appears that service was made upon a person other than the
defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant
also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we
believe that these propositions are entirely correct as applied to the case where the person making
the return is the officer who is by law required to make the return, we do not think that it is properly
applicable where, as in the present case, the affidavit was made by a person who, so far as the
provisions of law are concerned, was a mere intermeddler.
The last question of importance which we propose to consider is whether a motion in the cause is
admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment
of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed,
proceeding again from the date mentioned as if the progress of the action had not been interrupted.
The proponent of the motion does not ask the favor of being permitted to interpose a defense. His
purpose is merely to annul the effective judgment of the court, to the end that the litigation may again
resume its regular course.
There is only one section of the Code of Civil Procedure which expressly recognizes the authority of
a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the
same cause. This is as follows:
SEC. 113. Upon such terms as may be just the court may relieve a party or legal
representative from the judgment, order, or other proceeding taken against him through his
mistake, inadvertence, surprise, or excusable neglect; Provided, That application thereof be
made within a reasonable time, but in no case exceeding six months after such judgment,
order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by section 513 of the same Code.
The first paragraph of this section, in so far as pertinent to this discussion, provides as follows:
When a judgment is rendered by a Court of First Instance upon default, and a party thereto
is unjustly deprived of a hearing by fraud, accident, mistake or excusable negligence, and
the Court of First Instance which rendered the judgment has finally adjourned so that no
adequate remedy exists in that court, the party so deprived of a hearing may present his
petition to the Supreme Court within sixty days after he first learns of the rendition of such
judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. .
..
It is evident that the proceeding contemplated in this section is intended to supplement the remedy
provided by section 113; and we believe the conclusion irresistible that there is no other means

recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a
judgment to be set aside, with a view to the renewal of the litigation.
The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it
contains provisions describing with much fullness the various steps to be taken in the conduct of
such proceedings. To this end it defines with precision the method of beginning, conducting, and
concluding the civil action of whatever species; and by section 795 of the same Code it is declared
that the procedure in all civil action shall be in accordance with the provisions of this Code. We are
therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all
others, so far as relates to the opening and continuation of a litigation which has been once
concluded.
The motion in the present case does not conform to the requirements of either of these provisions;
and the consequence is that in our opinion the action of the Court of First Instance in dismissing the
motion was proper.
If the question were admittedly one relating merely to an irregularity of procedure, we cannot
suppose that this proceeding would have taken the form of a motion in the cause, since it is clear
that, if based on such an error, the came to late for relief in the Court of First Instance. But as we
have already seen, the motion attacks the judgment of the court as void for want of jurisdiction over
the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity
it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is,
if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in this.
Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which
can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its
head.
But the judgment in question is not void in any such sense. It is entirely regular in form, and the
alleged defect is one which is not apparent upon its face. It follows that even if the judgment could
be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved
thereby is bound to resort to some appropriate proceeding to obtain relief. Under accepted principles
of law and practice, long recognized in American courts, a proper remedy in such case, after the
time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the
judgment, if not already carried into effect; or if the property has already been disposed of he may
institute suit to recover it. In every situation of this character an appropriate remedy is at hand; and if
property has been taken without due process, the law concedes due process to recover it. We
accordingly old that, assuming the judgment to have been void as alleged by the proponent of this
motion, the proper remedy was by an original proceeding and not by motion in the cause. As we
have already seen our Code of Civil Procedure defines the conditions under which relief against a
judgment may be productive of conclusion for this court to recognize such a proceeding as proper
under conditions different from those defined by law. Upon the point of procedure here involved, we
refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to
vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face;
and in all cases, after the lapse of the time limited by statute if the judgment is not void on its face;
and all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a
proceeding in court for that purpose an action regularly brought is preferable, and should be
required. It will be noted taken verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed from is without error, and
the same is accordingly affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson, and Avancea, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

I dissent. It will not make me long to state my reasons. An immutable attribute the fundamental
idea of due process of law is that no man shall be condemned in his person or property without
notice and an opportunity of being heard in his defense. Protection of the parties demands a strict
and an exact compliance with this constitutional provision in our organic law and of the statutory
provisions in amplification. Literally hundreds of precedents could be cited in support of these
axiomatic principles. Where as in the instant case the defendant received no notice and had no
opportunity to be heard, certainly we cannot say that there is due process of law. Resultantly, "A
judgment which is void upon its face, and which requires only an inspection of the judgment roll to
demonstrate its want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the
power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant."
(Mills vs. Dickons, 6 Rich [S. C.], 487.)

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 203302

April 11, 2013

MAYOR EMMANUEL L. MALIKSI, Petitioner,

vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner
Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing his
petition for certiorari assailing the resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan
as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for
the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest
number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite
alleging that there were irregularities in the counting of votes in 209 clustered precincts.
Subsequently, the RTC held a revision of the votes, and, based on the results of the revision,
declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist
from performing the functions of said office. Saquilayan appealed to the COMELEC. In the
meanwhile, the RTC granted Maliksis motion for execution pending appeal, and Maliksi was then
installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to
recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it
issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to
defray the expenses for the decryption and printing of the ballot images. Later, it issued another
order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision and
declaring Saquilayan as the duly elected Mayor.1
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process
because he had not been notified of the decryption proceedings. He argued that the resort to the
printouts of the ballot images, which were secondary evidence, had been unwarranted because
there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis motion for
reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption,
printing, and examination of the ballot images without prior notice to him, and to the use of the
printouts of the ballot images in the recount proceedings conducted by the First Division.
1wphi1

In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksis
petition for certiorari. The Court concluded that Maliksi had not been denied due process because:
(a) he had received notices of the decryption, printing, and examination of the ballot images by the

First Division referring to the orders of the First Division directing Saquilayan to post and augment
the cash deposits for the decryption and printing of the ballot images; and (b) he had been able to
raise his objections to the decryption in his motion for reconsideration. The Court then pronounced
that the First Division did not abuse its discretion in deciding to use the ballot images instead of the
paper ballots, explaining that the printouts of the ballot images were not secondary images, but
considered original documents with the same evidentiary value as the official ballots under the Rule
on Electronic Evidence; and that the First Divisions finding that the ballots and the ballot boxes had
been tampered had been fully established by the large number of cases of double-shading
discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED
IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONERS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION,
PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE
BASIS FOR THE ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC
RESPONDENT, WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE
COMELEC FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO
DIRECTIVE OF THE COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER,
AND FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED
IN UPHOLDING THE COMELEC FIRST DIVISIONS RULING TO DISPENSE WITH THE
PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE
FACT THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE
VOTERS WILL, AND THAT BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL
BALLOTS ARE LOST OR THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE
RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE,
AND IN FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS
PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE
PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT
THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT
EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR
HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT
JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON
THE 12 MARCH 2013 RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be
present at every stage thereof; (b) that he was deprived of such rights when he was not informed of
the decryption, printing, and examination of the ballot images by the First Division; (c) that the March
28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch
as the orders did not state the date, time, and venue of the decryption and printing of the ballot
images; and (d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.
Maliksi contends that the First Divisions motu proprio directive for the decryption, printing, and
examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the
decryption, printing, and examination should have taken place during the revision before the trial
court and after the revision committee had determined that the integrity of the official ballots had not

been preserved; (b) that the trial court did not make such determination; (c) that, in fact, Saquilayan
did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been
tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division
should not have entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the
First Division should have limited itself to reviewing the evidence on record; and (f) that the First
Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had
not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been
promulgated despite the absence from the deliberations and lack of signature of Justice Jose
Portugal Perez.
Ruling
The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and reverses the decision
promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him
the right to due process by failing to give due notice on the decryption and printing of the ballot
images. Consequently, the Court annuls the recount proceedings conducted by the First Division
with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed recount
proceedings because it was then exercising appellate jurisdiction as to which no existing rule of
procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized
under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by
the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election
protests involving elective regional (the autonomous regions), provincial and city officials.4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount
proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the
reconstitution of the Revision Committee for the decryption and printing of the picture images and
the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld
the First Divisions unwarranted deviation from the standard procedures by invoking the COMELECs
power to "take such measures as the Presiding Commissioner may deem proper," and even citing
the Courts minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on
Elections5 to the effect that the "COMELEC has the power to adopt procedures that will ensure the
speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long
as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections,
the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases
should still be exercised only after giving to all the parties the opportunity to be heard on their
opposing claims. The parties right to be heard upon adversarial issues and matters is never to be
waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice
to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not
have upheld the First Divisions deviation from the regular procedure in the guise of speedily
resolving the election protest, in view of its failure to provide the parties with notice of its proceedings
and an opportunity to be heard, the most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of
the original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral
Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise official ballots that faithfully capture in electronic form the votes cast by the
voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional

equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest."
That the two documentsthe official ballot and its picture imageare considered "original
documents" simply means that both of them are given equal probative weight. In short, when either
is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral
Tribunals to quickly and unilaterally resort to the printouts of the picture images of the
ballots in the proceedings had before them without notice to the parties. Despite the equal
probative weight accorded to the official ballots and the printouts of their picture images, the
rules for the revision of ballots adopted for their respective proceedings still consider the
official ballots to be the primary or best evidence of the voters will. In that regard, the picture
images of the ballots are to be used only when it is first shown that the official ballots are lost
or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec
Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10,
2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount
Committee determines that the integrity of the ballots has been violated or has not been preserved,
or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the
printing of the image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the
ballots has been preserved or that no signs of tampering of the ballots are present, will the recount
proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet
or are otherwise in such a condition that it could not be recounted, the Recount Committee shall
follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election
Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction
over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot
box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to
instruct the printing of the picture image of the ballots stored in the data storage device for the
precinct. The court shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. Only
after this determination can the printed picture image be used for the recount. (Emphases supplied.)
xxxx

A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. The revision of votes shall be done through the use of
appropriate PCOS machines or manually and visually, as the Tribunal may determine, and
according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not
preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing
of the picture image of the ballots of the subject precinct stored in the data storage device for the
same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a
non-partisan technical person who shall conduct the necessary authentication process to ensure that
the data or images stored are genuine and not merely substitutes. It is only upon such determination
that the printed picture image can be used for the revision of votes. (Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunals Guidelines on the Revision of Ballots requires
a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots
and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct.
The Tribunal shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision. (As
amended per Resolution of February 10, 2011; Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the
ballots may be resorted to only after the proper Revision/Recount Committee has first determined
that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and the
printing of the decrypted images take place during the revision or recount proceedings. There is a
good reason for thus fixing where and by whom the decryption and the printing should be conducted.
It is during the revision or recount conducted by the Revision/Recount Committee when the parties
are allowed to be represented, with their representatives witnessing the proceedings and timely
raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount
Committee makes any determination that the ballots have been tampered and have become
unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising
original jurisdiction over the protest that made the finding that the ballots had been tampered, but the
First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal
notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not
even issue any written resolution stating its reasons for ordering the printing of the picture images.

The parties were formally notified that the First Division had found that the ballots had been
tampered only when they received the resolution of August 15, 2012, whereby the First Division
nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the
resolution of the First Division to that effect was unusually mute about the factual bases for the
finding of ballot box tampering, and did not also particularize how and why the First Division was
concluding that the integrity of the ballots had been compromised. All that the First Division declared
as justification was a simple generalization of the same being apparent from the allegations of ballot
and ballot box tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on provided
the explanation to justify the First Divisions resort to the picture images of the ballots, by observing
that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the
votes for Saquilayan had led to the belief that the ballots had been tampered. However, that
explanation by the COMELEC En Banc did not cure the First Divisions lapse and did not erase the
irregularity that had already invalidated the First Divisions proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELECs finding
of ballot tampering was a mere surplusage because there was actually no need for such finding
before the ballots digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion
to be approved by the Division of the Commission requesting for the printing of ballot images in
addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the
necessary materials in the printing of images such as but not limited to copying papers, toners and
printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy
of the ballot images contained in a secured/hashed disc on the condition that the ballot images be
first printed, at the expense of the requesting party, and that the printed copies be signed by the
parties respective revisors or representatives and by an ERSD IT-capable representative and
deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who
will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she
deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot
boxes before the COMELEC Division may grant the motion. He states that a determination by the
parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which
in turn pertinently states that:
Section 6. Conduct of the Recount
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as
that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity of
the ballot box has been preserved.

In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a physical
inventory of the contents thereof. The committee shall, however, record its general observation of
the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did not in
any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayans motion to
print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First
Division merely resolved Saquilayans motion for the printing of the ballot images; instead, it
reinforced the First Divisions finding that there was tampering of the ballots. The non-mention of
Saquilayans motion was a clear indication of the COMELECs intention to act motu proprio; and also
revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering,
before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Divisions denial of Maliksis right to due
process. For, if the First Division was really only acting on a motion to allow the printing of the ballot
images, there was a greater reason for the First Division to have given the parties notice of its ruling
thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the
ballot images should such party deem it necessary, and the COMELEC may grant such motion, is
contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they
may file a motion." The provision really envisions a situation in which both parties have agreed that
the ballot images should be printed. Should only one of the parties move for the printing of the ballot
images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the
integrity of the ballots has been compromised.
The disregard of Maliksis right to be informed of the decision to print the picture images of the
ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside
by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be
exact, the motion for reconsideration was actually directed against the entire resolution of the First
Division, while Maliksis claim of due process violation is directed only against the First Divisions
recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First
Division did not issue any order directing the recount. Without the written order, Maliksi was deprived
of the chance to seek any reconsideration or even to assail the irregularly-held recount through a
seasonable petition for certiorari in this Court. In that context, he had no real opportunity to assail the
conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits
for the printing of the picture images did not sufficiently give Maliksi notice of the First Divisions
decision to print the picture images. The said orders did not meet the requirements of due process
because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor
did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to
surmise on the factual bases for finding the need to print the picture images still violated the
principles of fair play, because the responsibility and the obligation to lay down the factual bases and
to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of
the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount
proceedings to the parties, but also demands an opportunity to be present at such proceedings or to
be represented therein. Maliksi correctly contends that the orders of the First Division simply
required Saquilayan to post and augment his cash deposit. The orders did not state the time, date,

and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of
giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and their participation are
required during the adversarial aspects of the proceedings. In that case, after the revision of the
ballots and after the election protest case was submitted for decision, the ballots and ballot boxes
were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in
the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile
conducted proceedings within the SETs premises. Mendoza then claimed that his right to due
process was violated because he had not been given notice by the COMELEC that it would be
conducting further proceedings within the SET premises. The Court did not sustain his claim,
however, and pointed out:
After consideration of the respondents Comments and the petitioners petition and Reply, we hold
that the contested proceedings at the SET ("contested proceedings") are no longer part of the
adversarial aspects of the election contest that would require notice of hearing and the participation
of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim
in the petitioners Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested
ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting
"further proceedings" requiring notice to the parties. There is no revision or correction of the ballots
because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating
with the SET, is simply resolving the submitted protest case before it. The parties necessarily take
no part in said deliberation, which require utmost secrecy. Needless to state, the actual decisionmaking process is supposed to be conducted only by the designated members of the Second
Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial
election contest on the merits. These deliberations are no different from judicial deliberations which
are considered confidential and privileged. We find it significant that the private respondents
Comment fully supported the COMELECs position and disavowed any participation in the contested
proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that
the private respondent was ever present in any proceeding at the SET relating to the provincial
election contest.
1wphi1

To conclude, the rights to notice and to be heard are not material considerations in the COMELECs
handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET;
no proceedings at the instance of one party or of COMELEC has been conducted at the SET that
would require notice and hearing because of the possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of
deliberating on the merits of the provincial election contest. In the context of our standard of review
for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation
of ballots this deliberation entailed.10 (Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of
ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division
were adversarial, in that the proceedings included the decryption and printing of the picture images
of the ballots and the recount of the votes were to be based on the printouts of the picture images.
The First Division did not simply review the findings of the RTC and the Revision Committee, but
actually conducted its own recount proceedings using the printouts of the picture image of the
ballots. As such, the First Division was bound to notify the parties to enable them to participate in the
proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC
Resolution No. 9164, requires the parties presence during the printing of the images of the ballots,
thus:

xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes.
xxxx
We should not ignore that the parties participation during the revision and recount proceedings
would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only
by their participation would the COMELECs proceedings attain credibility as to the result. The
parties presence would have ensured that the requisite procedures have been followed, including
the required authentication and certification that the images to be printed are genuine. In this regard,
the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and
printing of the picture images of the ballots and the recount proceedings. The COMELEC was
merely content with listing the guidelines that the First Division had followed in the appreciation of
the ballots and the results of the recount. In short, there was vagueness as to what rule had been
followed in the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the
position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the
COMELECs decision to use the digital images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would have been the appropriate procedure,
we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital
images of the ballots and to hold recount proceedings, with due notice to all the parties and
opportunity for them to be present and to participate during such proceedings. Nothing less serves
the ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition, the
COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended
by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010
Elections. That is not the concern of the Court as yet. The Court simply does not want to
countenance a denial of the fundamental right to due process, a cornerstone of our legal
system.11 After all, it is the Courts primary duty to protect the basic rights of the people vis--vis
government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of
petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and
DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of the

picture images of the ballots involved in the protest after due authentication, and for the recount of
ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or
their representatives in accordance with the procedure laid down by Rule 15 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
CERTIFICATION
I certify that the conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Rollo, p. 125.

Id. at 63

Id. at 575-577.

COMELEC Resolution No. 8804, Rule 6, Section 1.

G.R. No. 199050, August 28, 2012.

2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3(r) defines
"electronic document" as follows:
xxxx
(r) Electronic documentrefers to the record of information or the representation of
information, data, figures, symbols or other modes of written expression, described
or however represented, by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally-signed documents and any printout or output,
readable by sight or other means that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture
image of the ballots or the electronic copies of the electronic returns, the statements
of votes, the certificates of canvass, the audit log, and other electronic data
processed by the PCOS and consolidation machines.
xxxx
Likewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of Procedure on
Disputes in an Automated Election System in Connection with the May 10, 2010
Elections), Rule 2, Section 1(q) defines "electronic document" as follows:
xxxx
(q) Electronic document refers to information or the representation of information,
data, figures, symbols or other modes of written expression, described or however
represented, by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced electronically. It
includes digitally signed documents and any print-out or output, readable by sight or
other means which accurately reflects the electronic document.
For purposes of these Rules, electronic documents refer to either the picture image
of the ballots and the electronic copies of the electronic returns, the statements of
votes, the certificates of canvass, the audit log, and of the other electronic data
relative to the processing done by the PCOS machines and the various consolidation
machines.
xxxx
7

G.R. No. 199149, January 22, 2013.

Rollo, p. 102.

G. R. No. 188308, October 15, 2009, 603 SCRA 692.

10

Id. at 716-717.

11

Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635, 653.

12

Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637
SCRA 78, 177.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed by Emmanuel
L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which affirmed the 14 September
2012 Resolution of the Commission on Elections (COMELEC) En Bane and declared Homer T.
Saquilayan (Saquilayan) as the duly-elected Municipal Mayor of lmus, Cavite.
In his motion for reconsideration, Maliksi cited extensively from the Dissenting Opinion1 and asserted
that he was denied due process when the COMELEC First Division decrypted, printed, and
examined the ballot images without notice to him. Maliksi further alleged that this Court's 12 March
2013 Decision is null and void for having been promulgated in the absence of Associate Justice Jose
Portugal Perez (Justice Perez).
First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March 2013
Decision was promulgated.
Section 4, Rule 12 of the Internal Rules of the Supreme Court allows a member of this Court to leave
his or her vote in writing. The Rule states:
SEC. 4. Leaving a vote. - A Member who goes on leave or is unable to attend the voting on any
decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice or
the Division Chairperson, and the vote shall be counted, provided that he or she took part in the
deliberation.
As such, there was nothing irregular when Justice Perez left his vote in writing with the Chief Justice
because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the trial court
when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In The Memory Cards Of
The Clustered Precincts2dated 21 March 2011. In that Motion, Saquilayan made the allegation of
tampering citing that during the preliminary revision proceedings, he noticed an unusually large
number of double-voted ballots only for the position of Mayor and that the recorded counts of all the
revision committees show significant discrepancies between the ballot counts and the results
reflected in the election returns.3 It was only on 3 May 2011 that the trial court in an Omnibus Order
granted Saquilayan's motion for the printing of the ballot images in the CF cards.4 On 16 May 2011,
the COMELEC Election Records and Statistics Department (ERSD) informed Saquilayan that the CF
cards were still in the custody of the trial court. In a Manifestation and Request5 dated 20 May 2011,
Saquilayan asked the trial court to forward the CF cards of the protested precincts to the ERSD to
enable the COMELEC to decrypt and print the ballot images. The decryption of the ballot images
was set on 21 June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure to Decrypt
Compact Flash (CF) Cards. The trial court, in an Order6 dated 17 June 2011, requested the ERSD to
specify the procedure that it would undertake during the proceedings and set the case for

conference on 27 June 2011. In a letter7 dated 20 June 2011, Maliksi wrote the ERSD requesting
that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order
of the trial court. On 27 June 2011, on the date the case was set for conference, Maliksi filed a
Motion to Consider That Period Has Lapsed to Print Ballot's Picture Images8 on the ground that
Saquilayan only had 30 days from receipt of the Omnibus Order dated 3 May 2011 to accomplish
the printing of the ballot images. Maliksi alleged that the 30-day period started on 10 May 2011 when
Saquilayan received the 3 May 2011 Omnibus Order and ended on 22 June 2011. Thus, Saquilayan
was already barred from having access to the electronic data in the COMELEC's back-up server and
to print the ballot images in the CF cards. The trial court granted Maliksi's motion in its Order dated 3
August 20119 despite the fact that the delay in the decryption could not be attributed to Saquilayan's
fault alone but also due to the failure of the trial court to turn over the CF cards to the ERSD and to
Maliksi's motion for the ERSD to specify the procedure in decrypting the CF cards. Clearly, the issue
of tampering, as well as the request for the decryption of the ballot images, was not raised for the
first time on appeal.
Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may only be
resorted to after the proper Revision/Recount Committee had first determined that the integrity of the
ballots and the ballot boxes was not preserved. Citing Section 6, Rule 15 of COMELEC Resolution
No. 8804,10 as amended by Resolution No. 9164,11 Maliksi alleged that the decryption of the images
stored in the CF cards and the printing of the decrypted images must take place during the revision
or recount proceedings and that it should be the Revision/Recount Committee that determines
whether the ballots are unreliable.
Section 6, Rule 1 5 should be read together with Rule 16 of Resolution No. 8804, as amended by
Resolution No. 9164, particularly Section 3, which provides:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion
to be approved by the Division of the Commission requesting for the printing of ballot images in
addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the
necessary materials in the printing of images such as but not limited to copying papers, toners and
printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy
of the ballot images contained in a secured/hashed disc on the condition that the ballot images be
first printed, at the expense of the requesting party, and that the printed copies be signed by the
parties' respective revisors or representatives and by an ERSD IT-capable representative and
deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who
will be responsible in the printing of ballot images. (Emphasis supplied)
Section 3, Rule 16 does not require any allegation of tampering before the printing of ballot
images may be requested by the parties. It does not require prior determination by the
Revision/Recount Committee that the integrity of the ballots and the ballot boxes was not
preserved. Under Section 3, Rule 16, the request may be made when the parties deem the
printing of the ballot images necessary.
To repeat, the parties can request for the printing of the ballot images "in case the parties deem it
necessary." This is a ground separate from that in Section 6( e), which refers to a determination of
the integrity of the ballots by the Revision/Recount Committee. Section 3, Rule 16 provides that "in
case the parties deem it necessary, they may file a motion to be approved by the Division of the
Commission requesting for the printing of ballot images in addition to those mentioned in t11e
second paragraph of item (e)." The second paragraph of item (e) speaks of signs of tampering, or if
the ballot box appears to have been compromised, thus:
Section 6. Conduct of the Recount- x x x.
xxxx

(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as
that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity of
the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a physical
inventory of the contents thereof. The committee shall, however, record its general observation of
the ballots and other documents found in the ballot box. (Emphasis supplied)
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the determination
by the parties that the printing is necessary. Clearly, even without signs of tampering or that the
integrity of the ballots and the ballot boxes had been compromised, the parties may move for the
printing of the ballot images. In this case, the COMELEC En Bane made it clear in its
Comment12 that the COMELEC First Division ordered the decryption, printing and examination of the
digital images because the COMELEC First Division "discovered upon inspection that the integrity of
the ballots themselves was compromised and that the ballot boxes were tampered."13 However,
applying Section 3 of Rule 16, the finding of tampering was not even necessary for the
COMELEC First Division to allow the printing of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011 before the trial
court. Saquilayan reiterated his motion to have the ballot images printed when he filed his appeal
brief14 before the COMELEC First Division. Saquilayan pointed out that he filed reiterations of his
motion to print with copies furnished to Maliksi until the COMELEC First Division ordered the
printing.15 There is nothing in the records which showed that Maliksi opposed Saquilayan's motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
Section 3. No hearings on motions. - Motions shall not be set for hearing unless the Commission
directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of the
Commission. The adverse party may file opposition five days from receipt of the motion, upon the
expiration of which such motion is deemed submitted for resolution. The Commission shall resolve
the motion within five days. (Emphasis supplied)
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images, he is deemed
to have waived his right to oppose the motion. The motion was deemed submitted for resolution. The
COMELEC En Bane categorically stated that Maliksi "never questioned the Order of decryption of
the First Division nor did he raise any objection in any of the pleadings he filed with this Commission
- a fact which already places him under estoppel."16 Maliksi could not claim that he was denied due
process because he was not aware of the decryption proceedings. The Order17 dated 28 March
2012 where the COMELEC First Division directed Saquilayan to deposit the required amount for
expenses for the supplies, honoraria, and fee for the decryption of the CF cards was personally
delivered to Maliksi's counsel. The Order18 dated 17 April 2012 where the COMELEC First Division
required Saquilayan to deposit an additional amount for expenses for the printing of additional ballot
images from four clustered precincts was again personally delivered to Maliksi's counsel. Maliksi
feigned ignorance of the decryption proceedings until he received the COMELEC First Division's
Resolution of 15 August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the authentication
process and the actual printing of the ballot images, Section 3 of Resolution No. 8804, as amended
by Resolution No. 9164, does not require the parties or their representatives to be present during the
printing of the ballot images. Maliksi should have moved to be present at, or to observe, the
decryption proceedings when he received the 28 March 2012 Order directing the decryption. Maliksi
did not, and thus he waived whatever right he had to be present at, or to observe, the decryption
proceedings.
I emphasize that there is no denial of due process where there is opportunity to be heard, either
through oral arguments or pleadings.19 Further, the fact that a party was heard on his motion for
reconsideration negates any violation of the right to due process.20 Maliksi's motion for

reconsideration was directed against the entire resolution of the First Division, including the recount
proceedings which he claimed to have violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing the evidence
on record, meaning the physical ballots, instead of using the decrypted images. Maliksi thus wanted
the COMELEC First Division to ignore its finding of tampering. On this issue, the COMELEC En
Bane stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically
pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested) thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election day, too specific to be
random and too precise to be accidental -which leaves a reasonable mind no other conclusion
except that those 8,387 cases of double-shading were purposely machinated. These dubious and
highly suspicious circumstances left us with no other option but to dispense with the physical ballots
and resort to their digital images. To recount the tampered ballots will only yield us tampered results
defeating the point of this appeal.21
In his Reflections submitted to this Court, Justice Perez stated that the present electoral contest is all
about over-voting. Justice Perez cited Guideline No. 5 used by the COMELEC which states:
5. On over-voting. It has been the position of the Commission that over-voting in a certain position
will make the vote cast for that position stray but will not invalidate the entire ballot, so in case of
over-voting for the contested position, such vote shall be considered stray and will not be credited to
any of the contending parties.
Justice Perez added that "in case of over-voting which is the case at hand, Guideline No. 5 out
rightly provides- the consequence that the vote shall be considered stray and will not be credited to
any of the contending parties." Justice Perez stated that the COMELEC disobeyed its own rule that
over-voting results in a stray vote.
This case is not a case of over-voting under Guideline No. 5. In over-voting under Guideline No. 5,
one person, that is, the voter himself, votes for two or more persons for one elective position. When
the ballot is fed to the PCOS machine, the machine reads that two or more candidates for the same
position had been shaded. The digital image will record two spaces shaded for one position. On the
other hand, in double-shading, the voter shades the space for one candidate but another person,
after the ballot is fed to the PCOS machine, surreptitiously shades another space for another
candidate for the same position. In double-shading, the digital image shows only one shaded space
for a candidate while the ballot shows two shaded spaces. In the present case, there was actually a
double-shading (although it was inaccurately referred to as over-voting in the COMELEC First
Division's Decision) which was done by person or persons other than the voter. When the ballot was
fed to the PCOS machine, the machine read only one vote for one candidate for one position. After
the double-shading, there were already two votes for two candidates for the same position, but the
digital image still contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS machines
because the digital images show only one shaded space while the ballots show two shaded spaces.
Double-shading is a post-election operation. The double-shading covered 8,387 ballots, "exclusively
affecting the position of Mayor and specifically affecting the ballots of Saquilayan"22 and the 8,387
affected ballots surprisingly all came from 53 clustered precincts "specifically pinpointed by Maliksi
as his pilot precincts."23
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which states that
"the best way to identity if a ballot has been tampered is to go to the digital image of the ballot as the
PCOS was able to capture such when the ballot was fed by the voter into the machine when he cast
his vote." This is what the COMELEC First Division did and the COMELEC First Division discovered
that there was no double-shading in the digital images of the ballots. Obviously, the double-shading
was done by persons other than the voters.

Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March 2011 before the
trial court. The COMELEC First Division took into consideration the allegation of tampering. Even
without the allegation of tampering, Section 3, Rule 16 of Resolution No. 8804, as amended by
Resolution No. 9164, allows the parties to request for the printing of the ballot images if the parties
deem it necessary. It is undisputed that Saquilayan requested the COMELEC for the printing of the
ballot images and Maliksi did not file any opposition to Saquilayan's motions. Upon inspection of the
ballots and ballot boxes, the COMELEC First Division found that the integrity of the ballots had been
compromised. When the digital images of the ballots were examined, the COMELEC First Division
found that there was no double-shading. As such, the ballots should not be considered stray under
Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for Reconsideration
filed by Emmanuel L. Maliksi.
ANTONIO T. CARPIO
Associate Justice

Footnotes
1

Penned by Associate Justice Lucas P. Bersamin.

Rollo, pp. 283-285.

Id. at 283.

Id. at 293-295.

Id. at 298-300.

Id.at302-303.

Id. at 304.

Id. at 307-309.

Id. at 359. Omnibus Order elated 1 September 2011.

10

In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in

Connection with the May 10, 2010 Elections.
11

In the Matter of Reinstating and Reimplementing Comelec Resolution No. 8804 with
Amendments.
12

Rollo, pp. 484-516.

13

Id. at 500.

14

Id. at 237, Saquilayan's Comment, p. 25.

15

Id.

16

Id. at 61.

17

Id. at 362.

18

Id. at 366.

19

Atty. Octava v. Commission on Elections. 547 Phil 647 (2007).

20

See German Management & 5'ervices, Inc. v. Court of Appeals, 258 Phil. 289 ( 1989).

21

Rollo, p. 60.

22

Id.

23

Id.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION
PEREZ, J.:
The issue as basic as due process of law and the opinion of as many as seven of us who saw that
petitioner was deprived of the fundamental right highlights my duty to join the discussion. With the
present motion for reconsideration providing the opportunity to look into the reasons that divided the
Court, I do so.
1. The electoral contest is all about over-voting. Simply, it means that in the contested ballots both
the slots separately for petitioner Maliksi and respondent Saquilayan who vied for the position of
Mayor of Imus, Cavite, were shaded. The guideline in the appreciation of ballots with over-voting is
embodied in Guideline No. 5 used by the COMELEC. Thus:
5. On over-voting. It has been the position of the Commission that over-voting in a certain position
will make the vote cast for that position STRAY but will not invalidate the entire ballot, so IN CASE
OF OVER-VOTING FOR THE CONTESTED POSITION, SUCH VOTE SHALL BE CONSIDERED
STRAY AND WILL NOT BE CREDITED TO ANY OF THE CONTENDING PARTIES. (Emphasis
supplied)
There is a correlated guideline, Guideline No. 2, in the sense that both guidelines refer to instances
of shading. However, as regards the covered matter and the consequence, the two rules are hugely
different. Guideline No. 2 is about an entire ballot that is claimed to have been shaded by two or
more persons, and it states:
2. On ballots claimed to have been shaded by two or more persons. -Unlike in manual elections
where it is easy to identify if a ballot has been written by two persons, in case of an automated
election, it would be very hard if not impossible to identify if two persons shaded a single ballot. The
best way to identify if a ballot has been tampered is to go to the digital image of the ballot as the
PCOS machine was able to capture such when the ballot was Jed by the voter into the machine
when he cast his vote. In the absence of any circumstance showing that the ballot was shaded by
persons other than the voter, the ballots should not be rejected to give effect to the voter's intent.
Clearly, in case of a ballot claimed to have been shaded by two or more persons, there is an inquiry
to determine whether or not the ballot was shaded by person/s, other than the voter. The Guideline
implies a presumption in favor of shading by the voter whose ballot should be rejected only if there is
"any circumstance" showing shading by somebody else.

On the contrary, in case of over-voting which is the case at hand, Guideline No. 5 out rightly
provides the consequence that the vote shall be considered stray and will not be credited to any of
the contending parties.
The reason behind the significant variance in the consequences of the two kinds of shading can be
debated endlessly. The obviousness of the difference outlined by the COMELEC, which is the sole
judge of an election contest, forecloses such a debate. What the obviousness brings about, as it is
my intention, is the grave abuse of discretion on the part of the COMELEC.
The COMELEC disobeyed its own rule that over-voting results in a stray vote. Relying on
"allegations of ballot and ballot box tampering," which allegations are without proof from the
proponent, the COMELEC nonetheless favors the allegations through its own inspection of the ballot
boxes to support its conclusion that "it is apparent that the integrity of the ballots had been
compromised." That was done on the first review of the appealed decision. On second review, the
COMELEC resorted to the observation of "unprecedented number of double-votes" which left it "with
no other option but to dispense with the physical ballots and resort to their digital image."
The grave abuse of discretion of the COMELEC is clear from its own words describing what it did in
this case.
It can be implied from its own decision on first review that the COMELEC agrees that before the
physical ballots can be disregarded and the digital image favored, the tampering of the ballot box
must be priorly proven. It had to allude to ballot box tampering because without the defect, the
integrity of the ballots is unassailable. No proof of tampering came from the contestants in this case.
The COMELEC relied on its observations. And it did not even detail the circumstances of the
inspection it made and the facts that make tampering "apparent."
Indeed, the over-voting itself cannot be the proof of ballot tampering. Even if we go by the Guideline
on the claim of ballot shading by two or more persons, the presumption is that the ballot was shaded
only by the voter, and this presumption prevails absent any circumstance showing that the ballot was
shaded by persons other than the voter. Plainly, in the instant case, there is no circumstance
independent of the fact of shading that such shading was done by someone other than the voter. Its
odd reliance on the over-voting itself underscores the applicability of the presumption that, in this
case, the voter himself/herself did the shadings.
The fact is that petitioner has in his Election Protest, come forward with an explanation about overvoting. Thus:
4.A.6. In Official Sample Ballot with Voters Information Sheet (VIS) issued by the Commission on
Elections, the number four candidate for Mayor of lmus, Cavite is Emmanuel L. Maliksi which
appears on the first row, third column in the said COMELEC official sample ballot, x x x. However, in
the Official Ballot, the name of Emmanuel L. Maliksi appears on the second row, second column as
number four candidate and the name of the fifth candidate Homer T. Saquilayan was moved from
the first row fourth column to first row third column where the name of Emmanuel L. Maliksi was
originally located on the sample ballot, x x x. This evidently resulted in the confusion and mistake in
the shading of the proper space for mayoralty candidate Emmanuel L. Maliksi.
This proposition was evidently found tenable by the trial court which, upon the opening of the ballot
boxes and ballots, applied the guideline that the over-votes are stray votes. That proposition based
on facts reached the COMELEC via appeal. It should have at least merited a discussion.
2. 1 concur with the ponencia of Justice Bersamin. I discussed the lack of factual and legal premise
for the decryption done by the COMELEC to punctuate its grave abuse of discretion that even went
further and similarly characterized the process of decryption itself.
I thus join Justice Bersamin in the remand of this case to the COMELEC for immediate cleansing of
the process, which after all, kindred to the purpose of Justice Bersamin, is the object of my
participation in the resolution of this contest, not the pleasure of anyone of the contestants.

EN BANC

[G.R. No. 126995. October 6, 1998]

IMELDA R. MARCOS, petitioner, vs. The Honorable SANDIGANBAYAN

(First
Division),
and
THE
PEOPLE
OF
THE
PHILIPPINES, respondents.
RESOLUTION
PURISIMA, J.:

This scenic Philippine archipelago is a citadel of justice, due process and rule of
law. Succinct and clear is the provision of the constitution of this great Republic that
every accused is presumed innocent until the contrary is proved. [Art. 111, Sec.
14(2)]. As held in People of the Philippines vs. Ellizabeth Ganguso y Decena (G.R. No
115430, November 23, 1995, 250 SCRA 268, 274-275):

An accused has in his favor the presumption of innocence which the Bill of
Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he
must be acquitted. This reasonable doubt standard is demanded by the due
process clause of the Constitution which protects the accused from conviction
except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. The burden of proof is on the
prosecution, and unless it discharges that burden the accused need not even
offer evidence in his behalf, and he would be entitled to an acquittal. Proof
beyond reasonable doubt does not, of course, mean such degree of proof as,
excluding the possibility of error, produce absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an
unprejudiced mind. The conscience must be satisfied that the accused is
responsible for the offense charged.
So also, well-settled, to the point of being elementary, is the doctrine that when
inculpatory facts are susceptible to two or more interpretations, one of which is
consistent with the innocence of the accused, the evidence does not fulfill or hurdle the
test of moral certainty required for conviction. (People of the Philippines vs. Eric
F. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373 citing People
vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248; People
vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562; People vs. Salangga,
234 SCRA 407)
Mindful of and guided by the aforecited constitutional and legal precepts, doctrines
and principles prevailing in this jurisdiction, should petitioners Motion for
Reconsideration be granted?
Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information
indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(g) of

Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, alleges:

That on or about June 8, 1984, and for sometime prior or subsequent thereto,
in Makati, Metro-Manila, Philippines, and within the jurisdiction of this
Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS,
JR., public officers, being then Chairman and Vice-Chairman, respectively, of
the Light Rail Transit Authority (LRTA), a government corporate entity created
under Executive Order No. 603 of the former President Ferdinand Marcos,
while in the performance of their official functions, taking advantage of their
positions and committing the crime in relation to their offices, did then and
there wilfully, unlawfully and criminally conspiring with one another, enter on
behalf of the aforesaid government corporation into a Lease Agreement
covering LRTA property located in Pasay City, with the Philippine General
Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and
conditions manifestly and grossly disadvantageous to the government.
CONTRARY TO LAW.
The case was raffled off to the First Division of the Sandiganbayan, with Presiding
Justice Francis E. Garchitorena, as Chairman and Justices Jose S. Balajadia and
Narciso T. Atienza, as members. On September 15, 1993, when the First Division
failed to comply with the legal requirement of unanimity of its three members due to the
dissent of Justice Narciso T. Atienza, Presiding Justice Garchitorena issued
Administrative Order No. 288-93 constituting a Special Division of five and designating
Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members.
On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena
requesting that he be given fifteen (15) days to send in his Manifestation. However, on
the same day, September 21, 1993, when Justice Balajadia and Presiding Justice
Garchitorena agreed with the opinion of Justice Del Rosario, Presiding Justice
Garchitorena issued Administrative Order No. 293-93, dissolving the Special Division of
Five, without waiting for Justice Amores manifestation. Justice Garchitorena
considered the said request of Justice Amores as pointless because of the agreement
of Justice Balajadia and the undersigned to the conclusion reached by Justice Atienza.
Thus, on September 24, 1993, the now assailed decision was handed down by the First
Division of the Sandiganbayan.
Under the aforequoted Information charging accused Imelda R. Marcos and Jose P.
Dans, Jr. with a violation of Section 3(g) of RA 3019, the following elements of the
offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused
acted as a public officer; 2] that subject Contract or transaction entered into by the
latter is manifestly and grossly disadvantageous to the government.
There is no dispute that sometime in the year 1984, the herein petitioner, Imelda R.
Marcos, was Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of
Transportation and Communication. The two served as ex oficio Chairman and Vice
Chairman, respectively, of the Light Rail Transport Authority (LRTA). Petitioner Marcos
was also Chairman of the Board of Trustees of the Philippine General Hospital
Foundation, Inc. (PGHFI).

On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI, and Jose P.

Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement (Exhibit B) by
virtue of which LRTA leased to PGHFI subject lot with an area of 7,340 square meters,
at a monthly rental of P102,760.00 for a period of twenty-five (25) years.
On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and
Transnational Construction Corporation, represented by its President Ignacio B.
Gimenez, signed the Sub-lease Agreement (Exhibit D), wherein said lessee rented
the same area of 7,340 square meters for P734,000.00 a month, for a period of twentyfive (25) years.
For executing the aforesaid Lease Agreement (Exhibit B), petitioner and Jose P.
Dans, Jr. were indicted in the said Information, for conspiring and confederating with
each other in entering into subject Lease Agreement alleged to be manifestly and
grossly disadvantageous to the government.
After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and
Jose P. Dans, Jr. of the offense charged.
On June 29, 1998, the Third Division of this court came out with its decision
affirming the judgment, as against petitioner Imelda R. Marcos, in G.R. No. 126995, but
reversing the same judgment, as against Jose P. Dans, Jr., in G.R. No. 127073.
In affirming the judgment of conviction against petitioner, the Third Division found
the rental price stipulated in the Lease Agreement, (Exhibit B) unfair and unreasonably
low,
upon
a
comparison
with
the
rental
rate
in
the
Sub-lease
Agreement (Exhibit D), which contract petitioner subsequently signed on behalf of
PGHFI, with TNCC. Undaunted, the petitioner interposed the present Motion for
Reconsideration.
The pivot of inquiry here is whether all the elements of the offense charged have
been duly substantiated. As regards the first element, did petitioner Imelda R. Marcos
enter into the Lease Agreement marked Exhibit B as a public officer? As clearly
stated on the face of the subject contract under scrutiny, petitioner signed the same in
her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as exofficio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as exofficio Vice-Chairman of LRTA. Although petitioner was the ex-officio Chairman of
LRTA, at the time, there is no evidence to show that she was present when the Board
of Directors of LRTA authorized and approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the irresistible
conclusion is that petitioner did not sign subject Lease Agreement as a public officer,
within the contemplation of RA 3019 and, therefore, the first element of the offense
charged is wanting.
It bears stressing, in this connection, that Jose P. Dans, Jr., the public officer who
signed the said Lease Agreement (Exhibit B) for LRTA, was acquitted.
As regards the second element of the offense - that such Lease Agreement is
grossly and manifestly disadvantageous to the government, the respondent court based
its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that
while the rental price under the Lease Agreement is only P102,760.00 a month, the
monthly rental rate under the Sub-lease Agreement is P734,000.00. After comparing
the two rental rates aforementioned, the respondent court concluded that the rental
price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the
government.

But Exhibit B does not prove that the said contract entered into by petitioner is
manifestly and grossly disadvantageous to the government. There is no established
standard by which Exhibit Bs rental provisions could be adjudged prejudicial to LRTA
or the entire government. Exhibit B standing alone does not prove any
offense. Neither does Exhibit B together with the Sub-lease Agreement (Exhibit
D) prove the offense charged.
At most, it creates only a doubt in the mind of the objective readers as to which
(between the lease and sub-lease rental rates) is the fair and reasonable one,
considering the different circumstances as well as parties involved. It could happen that
in both contracts, neither the LRTA nor the Government suffered any injury. There is,
therefore, insufficient evidence to prove petitioners guilt beyond reasonable doubt.
Verily, it is too obvious to require an extended disquisition that the only basis of the
respondent court for condemning the Lease Agreement (Exhibit B) as manifestly and
grossly disadvantageous to the government was a comparison of the rental rate in the
Lease Agreement, with the very much higher rental price under the Sub-lease
Agreement (Exhibit D). Certainly, such a comparison is purely speculative and
violative of due process. The mere fact that the Sub-lease Agreement provides a
monthly rental of P734,000.00 does not necessarily mean that the rental price
of P102,760.00 per month under the Lease Agreement (Exhibit B) is very low,
unreasonable and manifestly and grossly disadvantageous to the government. There
are many factors to consider in the determination of what is a reasonable rate of rental.
What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was
inked, the rental rate therein provided was based on a study conducted in accordance
with generally accepted rules of rental computation. On this score, Mr. Ramon F.
Cuervo, Jr., the real estate appraiser who testified in the case as an expert witness and
whose impartiality and competence were never impugned, assured the court that the
rental price stipulated in the Lease Agreement under scrutiny was fair and
adequate. According to him, witness, the reasonable rental for subject property at the
time of execution of Exhibit B was only P73,000.00 per month.
That the Sub-lease Agreement (Exhibit D) was for a very much higher rental rate
of P734,000.00 a month is of no moment. This circumstance did not necessarily render
the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the
lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per
month was manifestly and grossly disadvantageous to the government. Not even a
single lease contract covering a property within the vicinity of the said leased premises
was offered in evidence. The disparity between the rental price of the Lease Agreement
and that of the Sublease Agreement is no evidence at all to buttress the theory of the
prosecution, that the Lease Agreement in question is manifestly and grossly
disadvantageous to the government. Gross is a comparative term. Before it can be
considered gross, there must be a standard by which the same is weighed and
measured.
All things viewed in proper perspective, it is decisively clear that there is a glaring
absence of substantiation that the Lease Agreement under controversy is grossly and
manifestly disadvantageous to the government, as theorized upon by the prosecution.
Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate
of P734,000.00 a month, did not result in any disadvantage to the government because
obviously, the rental income realized by PGHFI from the Sub-lease Agreement (Exhibit
D) augmented the financial support for and improved the management and operation

of the Philippine General Hospital, which is, after all, a government hospital of the
people and for the people.
Another sustainable ground for the granting of petitioners motion for
reconsideration is the failure and inability of the prosecution to prove that petitioner was
present when the Board of Directors of LRTA authorized and approved the Lease
Agreement complained of. Albeit, petitioner was ex oficio chairman of the Board of
Directors of LRTA when the said Lease Agreement was entered into, there is no
evidence whatsoever to show that she attended the board meeting of LRTA which
deliberated and acted upon subject Lease Agreement (Exhibit B). It is thus beyond
cavil that petitioner signed the said Lease Agreement as Chairman of the PGH
Foundation, Inc., a private charitable foundation, and not as a public officer.
Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who
has been found without any criminal liability for signing the same Lease
Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot
be viewed as an act of the former. Petitioner is only answerable for her own individual
act. Consequently, petitioner not having signed Exhibit B as a public officer, there is
neither legal nor factual basis for her conviction under Section 3 (g) of Rep Act 3019.
It bears repeating that apart from the Lease Agreement and Sub-lease Agreement
marked Exhibits B and D, respectively, the prosecution offered no other evidence to
prove the accusation at bar.
What makes petitioners stance the more meritorious and impregnable is the patent
violation of her right to due process, substantive and procedural, by the respondent
court. Records disclose that: (a) the First Division of the Sandiganbayan composed of
Presiding Justice Garchitorena and Associate Justices Balajadia and Atienza could not
agree on whether to convict or acquit the petitioner in the five (5) criminal cases pending
against her. Justice Atienza was in favor of exonerating petitioner in Criminal Case
Nos. 17449, 17451 and 17452. Justices Garchitorena and Balajadia wanted to convict
her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there there was no
unanimity of votes in Criminal Case Nos. 17451 and 17452; (b) on September 15,
1993, in accordance with Sec. 5 of P. D. No. 1606, Presiding Justice Garchitorena
issued Adm. Order
No. 288-93 constituting a Special Division of five(5) justices,
and naming thereto, Justices Augusto M. Amores and Cipriano A. del Rosario; (c) on
September 21, 1993, Justice Amores sent a written request to Presiding Justice
Garchitorena asking that he be given fifteen (15) days to submit his Manifestation; (d)
on the same day, September 21, 1993, however, Presiding Justice Garchitorena and
Justices Balajadia and del Rosario, after attending a hearing of the Committee of
Justice of the House of Representatives, lunched together in a Quezon City
restaurant where they discussed petitioners cases in the absence of Justices Atienza
and Amores and in the presence of a non-member of the Special Division. Thereat,
Presiding Justice Garchitorena, and Justices Balajadia and del Rosario agreed with the
position of Justice Atienza to acquit petitioner in Criminal Case Nos. 17449, 17451 and
17452 and to convict her in the other cases; and (e) when the Justices returned to the
official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order
No. 293-93 dissolving the Special Division.
Such procedural flaws committed by respondent Sandiganbayan are fatal to the
validity of its decision convicting petitioner for the following reasons, viz:
First. Section 4, Rule VI categorically provides that sessions of the
Sandiganbayan, whether en banc or division, shall be held in its principal office in the

Metropolitan Manila where it shall try and determine all cases filed with it x x x. This
rule reiterates Sec. 2 of P.D. No. 1606, as amended, creating the Sandiganbayan.
Second, The rules of Sandiganbayan do not allow unscheduled discussion of
cases. We take judicial notice of the procedure that cases in all courts are carefully
calendared and advance notices are given to judges and justices to enable them to
study and prepare for deliberation. The calendaring of cases cannot be the subject of
anybodys whims and caprices.
Third. The rules of Sandiganbayan do not also allow informal discussion of
cases. The deliberations in case at bar did not appear on record. The informal
discussion of the three justices came to light only when petitioner moved to inhibit
Presiding Justice Garchitorena after her conviction by the resuscitated First
Division. Presiding Justice Garchitorena, in a paper entitled Response, revealed for
the first time the informal discussion of petitioners cases at an unnamed restaurant in
Quezon City. There is no way to know how the discussion was conducted as it was not
minuted.
Fourth. The rules of the Sandiganbayan do not allow the presence of a nonmember in the deliberation of cases. In the case at bar, a certain justice was present
when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario
discussed petitioners cases while taking their lunch in a Quezon City restaurant.
Fifth. The rules of the Sandiganbayan do not allow the exclusion of a member of a
Division, whether regular or special, in the deliberation of cases. Justices Atienza and
Amores were members of the Special Division but were not present when petitioners
cases were discussed over lunch in a Quezon City restaurant. They were not notified of
the informal, unscheduled meeting. In fact, Justice Amores had a pending request for
15 days to study petitioners cases. In effect, Atienza and Amores were
disenfranchised. They were denied their right to vote for the conviction or acquittal of
petitioner.
These irregularities violated the right of petitioner to be tried by
a collegial court. Under PD No. 1606, as amended, and pursuant to the rules of
Sandiganbayan, petitioner cannot be convicted except upon the vote of three justices,
regardless of whether her cases are before a regular division of three (3) justices or a
Special Division of five (5) justices. But more important than the vote of three (3)
justices is the process by which they arrive at their vote. It is indispensable that their
vote be preceded by discussion and deliberation by all the members of the
division. Before the deliberation by all, any opinion of a justice is but tentative and could
be changed. It is only after all the justices have been heard should the justices reach a
judgment. No one opinion can be denigrated in importance for experience shows that
an opinion that starts as a minority opinion could become the majority opinion after the
collision of views of the justices. The right of the petitioner, therefore, is the right to be
heard by all the five justices of the Special Division. She is entitled to be afforded the
opinion of all its members.
In the case at bar, Presiding Justice Garchitorena had already created the Special
Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the
First Division. At that stage, petitioner had a vested right to be heard by the five (5)
justices, especially the new justices in the persons of Justices Amores and del Rosario
who may have a different view of the cases against her. At that point, Presiding Justice
Garchitorena and Justice Balajadia may change their mind and agree with the original
opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested
right to the opinion of Justices Amores and del Rosario. It may be true that Justice del

Rosario had already expressed his opinion during an informal, unscheduled meeting in
the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated
by law. But what is more, petitioner was denied the opinion of Justice Amores for
before it could be given, Presiding Justice Garchitorena dissolved the Special Division.
We reject the rationalization that the opinion of Justice Amores was of de
minimis importance as it cannot overturn the votes of the three justices convicting the
petitioner. This is a mere guesswork. The more reasonable supposition is that said
opinion could have changed the opinions of the other justices if it is based on an
unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For
we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices
Balajadia and Atienza are bigots who will never change their opinions about the guilt of
the petitioner despite a better opinion.
Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an
opinion for the acquittal of the petitioner, that opinion will have an added value when
petitioner appeals her conviction to this Court. Again, depending on its scholarship, that
minority opinion could sway the opinion of this Court towards the acquittal of petitioner.
Prescinding from those premises, it is indisputable that the decision of the First
Division of the respondent Sandiganbayan convicting the petitioner is void for violating
her right to substantive and procedural due process of law.
It is opined, however, that this case should be remanded to the respondent
Sandiganbayan for re-decision by a Special Division of 5. As a general rule, a void
decision will not result in the acquittal of an accused. The case ought to be remanded
to the court of origin for further proceedings for a void judgment does not expose an
accused to double jeopardy. But the present case deserves a different treatment
considering the great length of time it has been pending with our courts. Records reveal
that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More
than six (6) years passed but petitioners prosecution is far from over. To remand the
case to the Sandiganbayan will not sit well with her constitutional right to its speedy
disposition. Section 16, Article III of the Constitution assures all persons shall have the
right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies. This right expands the right of an accused to have a speedy,
impartial, and public trial x x x in criminal cases guaranteed by Section 14(2) of Article
III of the Constitution. It has a broadening effect because Section 16 covers the periods
before, during and after trial whereas Section 14(2) covers only the trial
period.[1] Heretofore, we have held that an accused should be acquitted when his right to
speedy trial has been violated. Thus, in the early 1936 case of People vs.
Castaeda, et al. 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held:

A strict regard for the constitutional rights of the accused would demand,
therefore, that the case be remanded to the court below for new trial before
an impartial judge. There are vital considerations, however, which in the
opinion of this court render this step unnecessary. In the first place, the
Constitution, Article III, section 1, paragraph 17, guarantees to every accused
person the right to a speedy trial. This criminal proceeding has been dragging
on for almost five (5) years now. The accused have twice appealed to this
court for redress from the wrong that they have suffered at the hands of the
trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had
been confined in prison from July 20, 1932 to November 27, 1934 for inability
to post the required bond of P3,000 which was finally reduced to P300. The

Government should be the last to set an example of delay and oppression in

the administration of justice and it is the moral and legal obligation of this court
to see that the criminal proceedings against the accused to come to an end
and that they be immediately discharged from the custody of the law. (Conde
vs. Rivera and Unson, 45 Phil., 650).
We reiterated this rule in Acebedo vs. Sarmiento , viz:[2]

2. More specifically, this Court has consistently adhered to the view that a
dismissal based on the denial of the right to a speedy trial amounts to an
acquittal. Necessarily, any further attempt at continuing the prosecution or
starting a new one would fall within the prohibition against an accused being
twice put in jeopardy. The extensive opinion of Justice Castro in People vs.
Obsania noted earlier made reference to f

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-46392 November 10, 1986
EMMA DELGADO, petitioner,
vs.
HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
Nicolito L. Bustos for petitioner.

PARAS, J.:
This is a petition for "Certiorari and mandamus with prayer for a Writ of preliminary injunction" to
review the following orders:
(a) Order of the Court of Appeals dated April 20, l977 denying petitioner's Urgent
Motion to Set Aside Entry of Judgment, to Recall the Records and allow the movant
to personally receive copy of the decision dated February 16, 1977;
(b) Resolution of the Court of Appeals dated June 3, 1977 denying petitioner's
Motion for Reconsiderationdated May 23, 1977; and
(c) Order dated May 11, 1977 of the Court of First In- stance of Manila ordering
petitioner's arrest and confiscation of her bond.
Emma R. Delgado, herein petitioner, together with Gloria C. Tortona, Celia Capistrano and Catalino
Bautista alias Atty. Paulino Bautista, the last named still at large, was charged with estafa thru
falsification of public and/or official documents resulting in deceiving one Erlinda Rueda, a Medical
Technologist, in arranging her travel to the United States.
All the accused (except Catalino Bautista) pleaded not guilty upon arraignment and trial on the
merits ensued. Herein petitioner Emma R. Delgado was assisted and represented by her counsel de
parte, Atty. Lamberto G. Yco. On December 13, 1973, the date set for the continuation of the
defense evidence, said Atty. Yco failed to appear despite proper and previous notice. Instead, he
sent a telegram requesting for postponement on the ground allegedly that he was sick. No medical
certificate was however submitted. The trial fiscal objected, believing that the motion was dilatory
because there had been numerous postponements in the past at petitioner's behest. The trial Court
sustained the fiscal's objection thereto, considered Emma Delgado to have waived presentation of
her evidence, and considered the case submitted for decision.
Thereafter, a judgment of conviction was rendered by the trial court, dated March 20, 1974, the
dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the Court finds the accused Gloria C.
Tortona, Emma R. Delgado and Celia Capistrano guilty beyond reasonable doubt of
the complex crime of Estafa thru Falsification of Public and/or Official Documents,
and each is hereby sentenced to an indeterminate penalty ranging from two (2) years
and four (4) months of prision correccional, as minimum, 4 to six (6) years, also
of prision correccional, as maximum, to pay a fine of P5,000.00, without subsidiary
imprisonment in case of insolvency and to indemnify the offended party Erlinda
Ruedas in the amount of P7,431.00. Each is further ordered to pay, jointly and

severally, said complainant moral damages in the amount of P5,000.00, and one
fourth of the costs of the proceedings.
SO ORDERED.
Accused Gloria C. Tortona did not appeal from the aforesaid decision. Accused Celia Capistrano
and petitioner Emma R. Delgado appealed to the Court of Appeals raising the issue of "whether or
not on the basis of the evidence and the law the judgment appealed from should be maintained."
On December 6, 1976, the Court of Appeals rendered judgment affirming the decision of the trial
court as to herein accused-petitioner Emma R. Delgado and reversing the judgment as to Celia
Capistrano, the dispositive part of which judgment reads as follows:
IN VIEW WHEREOF, on reasonable doubt, judgment as to appellant Capistrano is
reversed with proportionate costs de officio and cancellation of bail bond, but
judgment as to appellant Delgado isaffirmed with proportionate costs.
SO ORDERED.
On December 27, 1976, an entry of final judgment was issued and on February 1, 1977, the records
of the case were remanded to the lower court for execution of judgment.
Believing that there was irregularity in the sending of notices and copy of the decision as petitioner
was not informed or notified of said decision by her counsel on record, Atty. Lamberto G. Yco, herein
petitioner filed on February 17, 1977 with respondent Court of Appeals an "Urgent Motion to Set
Aside Entry of Judgment, to Recall the Records and All w the Movant to Personally Receive Copy
of the Decision.
This motion was denied by respondent Court of Appeals in its Resolution dated April 20, 1977.
On May 11, 1977 an Order was issued by respondent Court of First Instance of Manila directing the
arrest of herein petitioner Emma R. Delgado and the confiscation of her bond for failure to appear at
the execution of judgment on May 11, 1977.
On May 27, 1977, petitioner filed a Motion for the Reconsideration of the Order denying her Motion
to Set Aside Entry of Judgments, etc., invoking as one of the grounds therein, the newly discovered
fact that petitioner came to know for the first time only on May 19, 1977 that Atty. Lamberto G. Yco is
not a member of the Philippine Bar. Petitioner prayed that she be granted a new trial on the ground
that she was deprived of her right to be defended by competent counsel.
On June 3, 1977, respondent Court of Appeals denied petitioner's motion, hence, she filed the
instant petition before this Court.
The main thrust of petitioner's arguments is that she is entitled to a new trial and therefore, all the
assailed orders of respondent courts should be vacated and set aside, because her "lawyer," Atty.
Lamberto G. Yco, is not a lawyer.
We find the petition impressed with merit
This is so because an accused person is entitled to be represented by a member of the bar in a
criminal case filed against her before the Regional Trial Court. Unless she is represented by a
lawyer, there is great danger that any defense presented in her behalf will be inadequate considering
the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of
due process.
WHEREFORE, the assailed judgment is SET ASIDE, and a new one is hereby rendered, remanding
the case to the trial court for new trial.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179462

February 12, 2009

PEDRO C. CONSULTA, Appellant,

vs.
PEOPLE OF THE PHILIPPINES, Appellee,
DECISION
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of April 23, 2007,1 affirmed the December 9, 2004
Decision of the Regional Trial Court of Makati City, Branch 139 convicting Pedro C. Consulta
(appellant) of Robbery with Intimidation of Persons, appellant filed the present petition.
The accusatory portion of the Information against appellant reads:
That on or about the 7th day of June, 1999, in the City of Makati, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and by means of
force, violence and intimidation, did then and there willfully, unlawfully and feloniously take, steal and
carry away complainants NELIA R. SILVESTRE gold necklace worth P3,500.00, belonging to said
complainant, to the damage and prejudice of the owner thereof in the aforementioned amount of
P3,500.00.
CONTRARY TO LAW.2 (Emphasis in the original, underscoring supplied)
From the evidence for the prosecution, the following version is gathered:
At about 2:00 oclock in the afternoon of June 7, 1999, private complainant Nelia R. Silvestre (Nelia),
together with Maria Viovicente (Maria) and Veronica Amar (Veronica), boarded a tricycle on their
way to Pembo, Makati City. Upon reaching Ambel Street, appellant and his brother Edwin Consulta
(Edwin) blocked the tricycle and under their threats, the driver alighted and left. Appellant and Edwin
at once shouted invectives at Nelia, saying "Putang ina mong matanda ka, walanghiya ka, kapal ng
mukha mo, papatayin ka namin." Appellant added "Putang ina kang matanda ka, wala kang kadala
dala, sinabihan na kita na kahit saan kita matiempuhan, papatayin kita."
Appellant thereafter grabbed Nelias 18K gold necklace with a crucifix pendant which, according to
an "alajera" in the province, was of 18k gold, and which was worth P3,500, kicked the tricycle and
left saying "Putang ina kang matanda ka! Kayo mga nurses lang, anong ipinagmamalaki niyo, mga
nurses lang kayo. Kami, marami kaming mga abogado. Hindi niyo kami maipapakulong kahit kailan!"
Nelia and her companions immediately went to the Pembo barangay hall where they were advised
to undergo medical examination. They, however, repaired to the Police Station, Precinct 8 in
Comembo, Makati City and reported the incident. They then proceeded to Camp Crame where they
were advised to return in a few days when any injuries they suffered were expected to manifest.
Nine days after the incident or on June 16, 1999, Nelia submitted a medico-legal report and gave her
statement before a police investigator.
Denying the charge, appellant branded it as fabricated to spite him and his family in light of the
following antecedent facts:

He and his family used to rent the ground floor of Nelias house in Pateros. Nelia is his godmother.
The adjacent house was occupied by Nelias parents with whom she often quarreled as to whom the
rental payments should be remitted. Because of the perception of the parents of Nelia that his family
was partial towards her, her parents disliked his family. Nelias father even filed a case for
maltreatment against him which was dismissed and, on learning of the maltreatment charge, Nelia
ordered him and his family to move out of their house and filed a case against him for grave threats
and another for light threats which were dismissed or in which he was acquitted.
Appellant went on to claim that despite frequent transfers of residence to avoid Nelia, she would
track his whereabouts and cause scandal.
Appellants witness Darius Pacaa testified that on the date of the alleged robbery, Nelia, together
with her two companions, approached him while he was at Ambel Street in the company of Michael
Fontanilla and Jimmy Sembrano, and asked him (Pacaa) if he knew a bald man who is big/stout
with a big tummy and with a sister named Maria. As he replied in the affirmative, Nelia at once asked
him to accompany them to appellants house, to which he acceded. As soon as the group reached
appellants house, appellant, on his (Pacaas) call, emerged and on seeing the group, told them to
go away so as not to cause trouble. Retorting, Nelia uttered "Mga hayop kayo, hindi ko kayo
titigilan."
Another defense witness, Thelma Vuesa, corroborated Pacaas account.
The trial court, holding that intent to gain on appellants part "is presumed from the unlawful taking"
of the necklace, and brushing aside appellants denial and claim of harassment, convicted appellant
of Robbery, disposing as follows:
WHEREFORE, premises considered, this Court finds accused PEDRO C. CONSULTA guilty beyond
reasonable doubt, as principal of the felony of Robbery with Intimidation of Persons defined and
penalized under Article 294, paragraph No. 5, in relation to Article 293 of the Revised Penal
Code and hereby sentences him to suffer the penalty of imprisonment from one (1) year, seven (7)
months and eleven (11) days of arresto mayor, as minimum, to eight (8) years, eight (8) months and
one (1) day of prision mayor, as maximum, applying the Indeterminate Sentence Law, there being
no mitigating or aggravating circumstances which attended the commission of the said crime.
The said accused is further ordered to pay unto the complainant Nelia Silvestre the amount of
P3,500.00 representing the value of her necklace taken by him and to pay the costs of this suit.
SO ORDERED. (Italics in the original, underscoring supplied)
The appellate court affirmed appellants conviction with modification on the penalty.
In his present appeal, appellant raises the following issues:
(1) Whether or not appellant was validly arraigned;
(2) Whether or not appellant was denied due process having been represented by a fake
lawyer during arraignment, pre-trial and presentation of principal witnesses for the
prosecution;
(3) Whether or not appellant has committed the crime of which he was charged; and
(4) Whether or not the prosecution was able to prove the guilt of the appellant beyond
reasonable doubt. (Underscoring supplied)
The first two issues, which appellant raised before the appellate court only when he filed his Motion
for Reconsideration of said courts decision, were resolved in the negative in this wise:

On the matter of accused-appellants claim of having been denied due process, an examination of
the records shows that while accused-appellant was represented by Atty. Jocelyn P. Reyes, who
"seems not a lawyer," during the early stages of trial, the latter withdrew her appearance with the
conformity of the former as early as July 28, 2000 and subsequently, approved by the RTC in its
Order dated August 4, 2000. Thereafter, accused-appellant was represented by Atty. Rainald C.
Paggao from the Public Defenders (Attorneys) Office of Makati City. Since the accused-appellant
was already represented by a member of the Philippine Bar who principally handled his defense,
albeit unsuccessfully, then he cannot now be heard to complain about having been denied of due
process.3 (Underscoring supplied)
That appellants first counsel may not have been a member of the bar does not dent the proven fact
that appellant prevented Nelia and company from proceeding to their destination. Further, appellant
was afforded competent representation by the Public Attorneys Office during the presentation by the
prosecution of the medico-legal officer and during the presentation of his evidence. People v.
Elesterio4 enlightens:
"As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is observed
that he was chosen by the accused himself and that his representation does not change the fact that
Elesterio was undeniablycarrying an unlicensed firearm when he was arrested. At any rate, he has
since been represented by a member of the Philippine bar, who prepared the petition for habeas
corpus and the appellants brief." (Underscoring supplied)
On the third and fourth issues. Article 293 of the Revised Penal Code under which appellant was
charged provides:
Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal
property belonging to another, by means of violence against or intimidation of any person, or using
force upon anything, shall be guilt of robbery. (Italics in the original, underscoring supplied)
Article 294, paragraph 5, under which appellant was penalized provides:
Art. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer:
xxxx
5. The penalty of prision correccional in its maximum period to prision mayor in its medium
period in other cases. x x x (Citations omitted; italics in the original; underscoring supplied)
The elements of robbery are thus: 1) there is a taking of personal property; 2) the personal property
belongs to another; 3) the taking is with animus lucrandi; and 4) the taking is with violence against or
intimidation of persons or with force upon things.
Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of
the offender. It may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.5
The Court finds that under the above-mentioned circumstances surrounding the incidental encounter
of the parties, the taking of Nelias necklace does not indicate presence of intent to gain on
appellants part. That intent to gain on appellants part is difficult to appreciate gains light given his
undenied claim that his relationship with Nelia is rife with ill-feelings, manifested by, among other
things, the filing of complaints6 against him by Nelia and her family which were subsequently
dismissed or ended in his acquittal.7
Absent intent to gain on the part of appellant, robbery does not lie against him. He is not necessarily
scot-free, however.

From the pre-existing sour relations between Nelia and her family on one hand, and appellant and
family on the other, and under the circumstances related above attendant to the incidental encounter
of the parties, appellants taking of Nelias necklace could not have been animated with animus
lucrandi. Appellant is, however, just the same, criminally liable.
For "[w]hen there is variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved."8
SEC. 5. When an offense includes or is included in another. An offense charged necessarily
includes the offense proved when some of the essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former constitute or form part of
those constituting the latter.9 (Italics in the original, underscoring supplied)
Grave coercion, like robbery, has violence for one of its elements. Thus Article 286 of the Revised
Penal Code provides:
"Art. 286. Grave coercions. The penalty of prision correccional and a fine not exceeding six
thousand pesos shall be imposed upon any person who, without authority of law,
shall, by means of violence, threats orintimidation, prevent another from doing something not prohibit
ed by law or compel him to do something against his will, whether it be right or wrong.
If the coercion be committed in violation of the exercise of the right of suffrage or for the purpose of
compelling another to perform any religious act or to prevent him from exercising such right or from
doing such act, the penalty next higher in degree shall be imposed." (Italics in the original;
underscoring supplied)
The difference in robbery and grave coercion lies in the intent in the commission of the act. The
motives of the accused are the prime criterion:
"The distinction between the two lines of decisions, the one holding to robbery and the other to
coercion, is deemed to be the intention of the accused. Was the purpose with intent to gain to take
the property of another by use of force or intimidation? Then, conviction for robbery. Was the
purpose, without authority of law but still believing himself the owner or the creditor, to compel
another to do something against his will and to seize property? Then, conviction for coercion under
Article 497 of the Penal Code. The motives of the accused are the prime criterion. And there was no
common robber in the present case, but a man who had fought bitterly for title to his ancestral
estate, taking the law into his own hands and attempting to collect what he thought was due
him.Animus furandi was lacking."10 (Italics in the original; citations omitted; underscoring supplied)
The Court finds that by appellants employment of threats, intimidation and violence consisting of,
inter alia, uttering of invectives, driving away of the tricycle driver, and kicking of the tricycle, Nelia
was prevented from proceeding to her destination.
Appellant is thus guilty of grave coercion which carries the penalty of prision correccional and a fine
not exceedingP6,000. There being no aggravating or mitigating circumstance, the penalty shall be
imposed in its medium term. Applying the Indeterminate Sentence Law, the minimum that may be
imposed is anywhere from one (1) month and one (1) day to six (6) months of arresto mayor, as
minimum, and from two (2) years, four (4) months and one (1) day to four (4) years and two (2)
months of prision correccional, as maximum.
WHEREFORE, the Court SETS ASIDE the challenged Court of Appeals Decision and another is
rendered finding appellant, Pedro C. Consulta, GUILTY beyond reasonable doubt
of Grave Coercion and sentences him to suffer the indeterminate penalty of from six (6) months of
arresto mayor as minimum, to three (3) years and six (6) months of prision correccional medium as
maximum.

Appellant is further ordered to return the necklace, failing which he is ordered to pay its value, Three
Thousand Five Hundred (P3,500) Pesos.
Costs de oficio.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
ARTURO D. BRION
Associate Justice
ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13 of Article VIII of the Constitution, and the Division Chairpersons Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1

Penned by Associate Justice Estela M. Perlas-Bernabe, with the concurrence of Associate

Justices Marina L. Buzon and Lucas P. Bersamin; CA rollo, pp. 166-176.
2

Records, p. 1.

Rollo, p. 169

G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

People v. Reyes, G.R. 135682, March 26, 2003, 399 SCRA 528

Exhibit "2" Information for Maltreatment, Exhibit "4" Light Threats, Exhibit "5" Grave
Threats.
6

Vide Exhibit "3" Order granting Supplemental Motion to Quash (Malicious Mischief), folder
1, records, pp. 202-203, Exhibit "4" Order dismissing the information for Light Threats.
7

Rules of Court, Rule 120, Section 4.

Id. at Section 5

10

United States v. Villa Abrille, 36 Phil. 807, 809 (1917).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-46272 June 13, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO OPIDA y QUIAMBAO and VIRGILIO MARCELO, accused-appellants.

CRUZ, J.:
This is an automatic review of the Decision of the Circuit Criminal Court, Seventh Judicial District,
imposing the death penalty upon Alberto Opida and Virgilio Marcelo for the crime of murder.
Unlike the victim in this case, who died from only one stab wound, the decision under review suffers
from several fatal flaws, all equally deadly. It suffices to discuss only one of them.
Time and again this Court has declared that due process requires no less than the cold neutrality of
an impartial judge. 1 Bolstering this requirement, we have added that the judge must not only be impartial
but must also appear to be impartial, to give added assurance to the parties that his decision will be
just. 2 The parties are entitled to no less than this, as a minimum guaranty of due process. This guaranty
was not observed in this case.

On July 31, 1976, in Quezon City, several persons ganged up on Fabian Galvan, stoned and hit him
with beer bottles until finally one of them stabbed him to death. The actual knife-wielder was
identified as Mario del Mundo.3 Nonetheless, Alberto Opida and Virgilio Marcelo were charged with
murder as conspirators and, after trial, sentenced to death.

The basis of their conviction by the trial court was the testimony of two prosecution witnesses,
neither of whom positively said that the accused were at the scene of the crime, their extrajudicial
confessions, which were secured without the assistance of counsel, and corroboration of the alleged
conspiracy under the theory of interlocking confession. 5
What is striking about this case is the way the trial judge conducted his interrogation of the two
accused and their lone witness, Lilian Layug. It was hardly judicious and certainly far from judicial, at
times irrelevant, at Worst malicious. Reading the transcript, one gathers the impression that the
judge had allied himself with the prosecution to discredit at the outset the credibility of the witnesses
for the defense.
Opida is a police character, admittedly a member of the Commando gang and with a string of
convictions for robbery, theft and vagrancy. 6 It is worth noting that the judge took special interest in his
tattoos, required him to remove his shirt so they could be examined, and even described them in detail for
the record. 7

Besides belaboring Opida's criminal activities and his tattoos, the judge asked him if he had "ever
been convicted at the National Mental Hospital with what else but malice and suggested to him that
his claim of manhandling by the police was a lie because investigators leave no mark when they
torture a suspect. 8 This was a point that could have been validly raised by the prosecution but certainly
not by the court. The judge also made it of record that the witness was gnashing his teeth, was showing
signs of hostility, that he was uneasy and that he was restless. "Now, whom do you want to fool the judge
asked, "the prosecutor, your lawyer, or the court? 9

In the hearing of September 22, 1976, the interrogation of Virgilio Marcelo, the other accused, was
conducted almost wholly by the judge who started cross-examining the witness even before the
defense counsel could ask his first question, and took over from the prosecution the task of
impeaching Marcelo's credibility. 10 The judge asked him about his drug addiction, his membership in the
Commando gang, his tattoos, his parentage, his activities, his criminal record all when he was supposed
to be under direct examination by his own lawyer. Defense counsel could hardly put in a word edgewise
because the judge kept interrupting to ask his own questions. 11

The questions were not clarificatory but adversary; and when they were not adversary, they were
irrelevant, and sometimes also cruel. At one point, the judge drew from the witness the statement
that his mother was living with another man; forthwith he suggested that the mother was unfaithful to
his father. 12 We deplore this sadistic treatment of the witness, especially as, for all his supposed
"toughness," he could not answer back. We fail to see what possible connection the mother's infidelity
could have had, by any stretch of the imagination, with the instant prosecution.

But the judge was to save the best or worst of his spite for the third witness, Lilian Layug, a waitress
in the restaurant where the appellant Opida was working as a cook. Noting at the outset that she
spoke English, he wanted to know where she had learned it and asked in ill-concealed insinuation if
she had worked in Angeles City or Olongapo or Sangley. 13 Because she was gesturing nervously, he
asked, "Are you a conductor? 14 Of the two accused, he asked her, "They are very proud of belonging to
the Commando gang to which the witness answered, putting him in his place, "That I do not know, Your
Honor." 15

One cannot but note the mockery in the following questions put by the judge to the witness, who was
probably wondering what the interrogation was all about
Court
Q You are a very good friend of Alberto Opida?
A Yes, Your Honor.
Q You have known him for years?
A One year only, Your Honor.
Q He always feed you with his favorite menu?
A Yes, Your Honor.
Q He is a very good cook?
A Yes, Your Honor.
Q Because what he could cook, you could not cook?
A I know also how to cook, Your Honor.
Q Answer my question.
A Yes, Your Honor.
Q Whenever you try to cook what he cooked, you could not imitate it,
because he is a good cook?
A Yes, Your Honor.

Q So, your admiration developed because of his cooking?

A Yes, Your Honor.
Q What favorite dish does he cook that you like, as far as you are
concerned?
A Adobo, Your Honor.
Q Most often you request him to cook adobo for you?
A Yes, Your Honor.
Q That is precisely one of the reasons why you also admire him?
A That is also a part, Your Honor,
Q Whenever you request him to cook adobo for you, he always
accommodate you?
A Yes, Your Honor.
Q As a matter of fact, the moment that he starts cooking adobo, you
could smell it already?
A Yes, Your Honor,
Q That starts your admiration for him.
A Yes, Your Honor.
Q And in return you reciprocate?
A Yes, Your Honor.
Q What kind of reciprocation do you give to Alberto Opida, whenever
you admire his cooking of adobo for you, cooking just for you?
A None, Your Honor.
Q Whenever he cooks adobo, he was singing?
A Sometimes, Your Honor.
Q What kind of song?
A He is singing a song with intended for Cora, Your Honor.
Q And you were also affected by it?
A No, Your Honor.
Q You mean to say, you are not very fond of emotional songs?
A I am not, because Cora is not minding him, Your Honor.

Q But sometimes he sings in the absence of Cora because, as you

said, he is cooking adobo for you?
A Yes, Your Honor.
Q What does he sings (sic) for you?
A He sings many songs, Your Honor.
Q For example, give the title
A Milagro, Your Honor.
Q He also sings Diyos Lamang Ang Nakakaalam?
A Sometimes, Your Honor.
Q He also sings Kapantay ay Langit?
A Yes, Your Honor.
Q He also sings Sapagkat Tayo'y Tao Lamang?
A I did not hear, Your Honor.
Q But, you said he also sings even in the absence of Cora?
A Yes, Your Honor.
Q You smell adobo while he cooks and sings. So, you developed
admiration also?
A Little only, Your Honor.
Q One way or another you have appreciated him, but the only thing,
as you know, he is related to Cora in the same way?
A Yes, Your Honor.
Q That is why you are testifying in his favor? Because of the smell of
adobo and his songs and it is an admiration. Therefore, there is that
tendency to testify in his favor?
A Yes, Your Honor. 16
On direct examination, Opida challenged his extrajudicial confession, claiming it had been obtained
without observance of the rights available under Article IV, Section 20 of the Constitution, particularly
the right to counsel.17 Parenthetically, the extrajudicial confession of Marcelo was also made without
assistance of counsel. 18 Opida also testified, under questioning from his counsel, that he had been
repeatedly hit with a "dos por dos" by a police officer while he was being investigated. 19

We have consistently held that the rights guaranteed during a custodial investigation are not
supposed to be merely communicated to the suspect, especially if he is unlettered, but must be
painstakingly explained to him so he can understand their nature and significance. Moreover,
manhandling of any sort will vitiate any extrajudicial confession that may be extracted from him and
renders it inadmissible in evidence against him. 20

Those principles were given mere lip service by the judge, who did not bother to look deeper into the
validity of the challenged confessions.
Given the obvious hostility of the judge toward the defense, it was inevitable that all the protestations
of the accused in this respect would be, as they in fact were, dismissed. And once the confessions
were admitted, it was easy enough to employ them as corroborating evidence of the claimed
conspiracy among the accused.
The accused are admittedly notorious criminals who were probably even proud of their membership
in the Commando gang even as they flaunted their tattoos as a badge of notoriety. 21 Nevertheless,
they were entitled to be presumed innocent until the contrary was proved and had a right not to be held to
answer for a criminal offense without due process of law. 22

The judge disregarded these guarantees and was in fact all too eager to convict the accused, who
had manifestly earned his enmity. When he said at the conclusion of the trial, "You want me to
dictate the decision now?" 23, he was betraying a pre-judgment long before made and obviously waiting
only to be formalized.

The scales of justice must hang equal and, in fact, should even be tipped in favor of the accused
because of the constitutional presumption of innocence. Needless to stress, this right is available to
every accused, whatever his present circumstance and no matter how dark and repellent his past.
Despite their sinister connotations in our society, tattoos are at best dubious adornments only and
surely not under our laws indicia of criminality. Of bad taste perhaps, but not of crime.
In any event, convictions are based not on the mere appearance of the accused but on his actual
commission of crime, to be ascertained with the pure objectivity of the true judge who must uphold
the law for all without favor or malice and always with justice.
Accused-appellants Opida and Marcelo, who have been imprisoned since 1976, have sent us
separate letters pleading for the resolution of their death sentences one way or the other once and
for all. Considering the way they were tried, we now declare that they should not be detained in jail a
minute longer. While this is not to say that the accused are not guilty, it does mean that, because
their constitutional rights have been violated, their guilt, if it exists, has not been established beyond
reasonable doubt and so cannot be pronounced. Due process has stayed the uneven hand of the
quick condemnor and must set the defendants free.
WHEREFORE, the conviction of Alberto Opida and Virgilio Marcelo is reversed and they are hereby
ordered released immediately. No costs.
SO ORDERED.
Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr. and Paras, JJ., concur.
Feria and Fernan JJ., are on leave.

Separate Opinions

TEEHANKEE, C.J., concurring:

I concur. I wish to state that some of us are not persuaded at all that the two herein accused should
be held guilty of the single stab wound inflicted on the victim in what appears to have been a

tumultuous affray. I hail the Court'sratio decidendi that prescinding therefrom, the accused's guilt, if it
exists in reality, cannot be pronounced because of the violation of their basic constitutional rights of
due process and of the constitutional provision outlawing uncounselled confessions.
In my dissenting opinion in the habeas corpus case of Dr. Aurora Parong, 1 wrote that "the Court
stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and
must see to it that the rights are respected and enforced. It is settled in this jurisdiction that once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment or before whom
the case is pending is ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention. 2 So accused persons deprived of the constitutional right of speedy trial have
been set free. 3 And likewise persons detained indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are entitled to regain their freedom. The spirit
and letter of our Constitution negates as contrary to the basic precepts of human rights and freedom that
a person be detained indefinitely without any charges."

I had stressed in another case that the plain mandate of the constitutional provision expressly
adopted the exclusionary rule as the only practical means of enforcing the constitutional injunction
against uncounselled confessions obtained in violation of one's constitutional rights by outlawing
their admission in court. The outlawing of such confessions thereby removed the incentive on the
part of military or police officers to disregard such basic constitutional rights, in the same manner
that the exclusionary rule bars admission of illegally seized evidence. 4
This fundamental rule that the court that rendered the judgment or before whom the case is pending
is ousted of jurisdiction upon showing of deprivation of a basic constitutional right was eroded during
the past authoritarian regime. I hail its vigorous restatement in the ponencia of Mr. Justice Isagani A.
Cruz.

Separate Opinions
TEEHANKEE, C.J., concurring:
I concur. I wish to state that some of us are not persuaded at all that the two herein accused should
be held guilty of the single stab wound inflicted on the victim in what appears to have been a
tumultuous affray. I hail the Court'sratio decidendi that prescinding therefrom, the accused's guilt, if it
exists in reality, cannot be pronounced because of the violation of their basic constitutional rights of
due process and of the constitutional provision outlawing uncounselled confessions.
In my dissenting opinion in the habeas corpus case of Dr. Aurora Parong, 1 wrote that "the Court
stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and
must see to it that the rights are respected and enforced. It is settled in this jurisdiction that once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment or before whom
the case is pending is ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention. 2 So accused persons deprived of the constitutional right of speedy trial have
been set free. 3 And likewise persons detained indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are entitled to regain their freedom. The spirit
and letter of our Constitution negates as contrary to the basic precepts of human rights and freedom that
a person be detained indefinitely without any charges."

I had stressed in another case that the plain mandate of the constitutional provision expressly
adopted the exclusionary rule as the only practical means of enforcing the constitutional injunction
against uncounselled confessions obtained in violation of one's constitutional rights by outlawing
their admission in court. The outlawing of such confessions thereby removed the incentive on the
part of military or police officers to disregard such basic constitutional rights, in the same manner
that the exclusionary rule bars admission of illegally seized evidence. 4

This fundamental rule that the court that rendered the judgment or before whom the case is pending
is ousted of jurisdiction upon showing of deprivation of a basic constitutional right was eroded during
the past authoritarian regime. I hail its vigorous restatement in the ponencia of Mr. Justice Isagani A.
Cruz.
Footnotes
1 Gutierrez v. Santos,
2 SCRA 249; Banco Espanol Filipino vs Palanca, 37 Phil., 921; Ignacio v. Villaluz, 90
SCRA 16; Tumey v. Ohio, 273 U.S. 510; Rule 137, Sec. 1, Rules of Court; Article IV,
Sec. 19, of the 1973 Constitution; Paderanga v. Azura, 136 SCRA 266. Fernandez v.
Presbitero, 79 SCRA 61.
3 TSN, Sept. 13, 1976, p. 142. Del Mundo was at large and could not be prosecuted.
4 Rollo, p. 51-A; pp. 152-160.
5 Ibid
6 TSN, Oct. 4, 1976, pp. 77-78.
7 TSN, Sept. 29, 1976, p. 162.
8 TSN, Oct. 4, 1976, pp. 72-77.
9 TSN, Oct. 4, 1976, pp. 71-77.
10 TSN Sept. 22, 19-6. pp. 49-50.
11 TSN, Sept. 22, 1976, pp. 161-162.
12 TSN, Sept. 22, 1976, p. 56.
13 TSN, Oct. 4, 1976, p. 91.
14 TSN, Oct. 4, 1976, p. 93.
15 TSN, Oct. 4, 1976, pp. 107-108.
16 11 TSN, Oct. 4, 1976, pp. 110-115.
17 Rollo, p. 51-A.
18 Rollo, p. 51-A.
19 TSN, Oct. 4, 1976, pp. 75-76.
20 People v. Caguioa, 95 SCRA 2; People v. Alde, 64 SCRA 224; People v.
Holgado, 85 Phil. 752; People v. Ramos, 122 SCRA 312; People v. Galit, 135 SCRA
465; People v. Cabrera, 134 SCRA 362,
21 TSN, Oct. 4, 1976, pp. 106-108.
22 1973 Constitution, Art. IV, Secs. 19,17.

23 TSN, Oct. 4, 1976, p. 121.

Teehankee, C.J.:
1 121 SCRA 472, 522, 531.
2 Gumabon vs. Director of Prisons, 37 SCRA 420, 427.
3 Conde vs. Diaz, 45 Phil. 173.
4 Magtoto vs. Manguera, 63 SCRA 4, 29.

Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION
PEOPLE OF THE PHILIPPINES,
Appellee,

G.R. NO. 188104

Present:
CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

- versus -

BENANCIO
BELARMINO,

MORTERA

Appellant.

Promulgated:
April 23, 2010

x ----------------------------------------------------------------------------------------x

DECISION
MENDOZA, J.:
This is an appeal from the January 23, 2009 Decision[1] of the Court
of Appeals which affirmed with modification the Decision[2] of the Regional
Trial Court, Branch 16, Zamboanga City (RTC), in Criminal Case No.
19311, which found accused Benancio[3] Belarmino guilty beyond
reasonable doubt of the crime of murder for the killing of one Robelyn
Rojas.

The accusatory portion of the Amended Information[4] charging the

accused with murder reads:
That on or about August 25, 2002, in the City of Zamboanga, Philippines and
within the jurisdiction of this Honorable Court, the above named accused, armed with a
knife, by means of treachery and with intent to kill, did then and there willfully, unlawfully
and feloniously, assault, attack and stab from behind with the use of said weapon that he
was then armed with, at the person of ROBELYN ROJAS y MALLARI, employing means,
manner and form which tended directly and specially to insure its execution without any
danger to the person of the accused, and as a result of which attack, the said Robelyn
Rojas y Mallari sustained stabbed wound on the fatal part of the latters body which
directly caused his death to the damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.

Upon arraignment on February 6, 2004, the accused pleaded Not

Guilty.[5]
At the trial, the prosecution presented the following witnesses: (1)
Ramil Gregorio, an eyewitness; (2) Jovel Veales, another eyewitness;
(3) Dr. Jamella Marbella, examining physician; (4) Leticia Rojas, mother
of Robelyn; and (5) PO1 Yaser Hakim.
The prosecutions version of the incident, as found by the trial court
and adopted by the Office of the Solicitor General, appears in the
Appellees Brief[6] as follows:
Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed on August 25,
2002 at Cabato Lane, Gov. Camins, Zamboanga City. Post mortem examination
conducted by Dr. Jamella Marbella, Medical Officer V of Zamboanga City Health Office
showed that Robelyn Rojas sustained the following injuries:
1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm. gaping located at
5 cm. from spine below the left sub-scapular region. 19 cm. deep upward
towards axilla, and 11 cm. deep downward towards left flank region.

2. Linear abrasion 5.5 cm. in length at the left lateral aspect of left arm (Ex.
B).
The cause of his death was cardio pulmonary arrest probably secondary to hemorrhagic
shock secondary to stab wound, penetrating left back (Exh. A-1).
Prosecution witness Ramil Gregorio y Toribio, 24 years old, single, testified that
on August 25, 2002, at about 3:00 oclock in the afternoon, he together with Jovel
Veales, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas were drinking tuba

at Cabato Lane, near Acapulco Drive, Governor Camins, Zamboanga City. Four of them
were sitting on a chair leaning on a concrete wall while two of their companions sat on the
ground. They have just started drinking when Benancio Mortera, Jr. arrived. He wanted
to hit Alberto Rojas with a Nescafe glass. Alberto Rojas ran away. Mortera said,
Sayang. He listened while the group of Ramil Gregorio were (sic) singing accompanied
by a guitar. Jomer Diaz, brother-in-law of Alberto Diaz, arrived. He bought something
from a store five meters away from the place where Gregorio and his companions were
drinking. Mortera said, Here comes another Rojas. Gregorio and his companions told
Jomer Diaz to run away. Mortera hurled a stone at Diaz but the latter was not
hit. Mortera left but he said that he will return. After a few minutes, Mortera came
back. When Jomer Diaz ran, Robelyn Rojas, brother of Alberto Rojas went to Jomer.
Mortera met Robelyn at a distance of about seven meters from the place where Ramil
Gregorio and his companions were drinking. Mortera and Robelyn discussed with each
other. After their discussion, Mortera and Robelyn shook hands. Robelyn turned his face
and walked three steps. Mortera suddenly stabbed Robelyn Rojas at the back with a knife
about 9 inches long. Robelyn was hit at the back. After stabbing Robelyn, Mortera ran
away. Robelyn Rojas tried to chase Mortera but he was not able to catch up with the
latter. Robelyn fell down mortally wounded. He was brought to the hospital by his
brother Ricky but he was [pronounced] dead on arrival at the hospital (Exh. A).
Jovel Veales y Bandian, 23 years old, who was drinking together with Ramil
Gregorio, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas, in the afternoon
ofAugust 25, 2002 corroborated Ramil Gregorios testimony.
Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of Robelyn Rojas y
Mallari. She testified that Robelyn is one of her eight children. xxx She was at work
at Zamboanga Puericulture Lying-in Maternity Hospital as laundry woman when her
daughter Marilyn called her by telephone informing her that Robelyn was stabbed. She
went to Western Mindanao Medical Center where she saw Robelyn already dead with stab
wound at the back. At past 6:00 oclock in the evening, Robelyns body was brought to
Remedios Funeral Parlor. Mrs. Rojas testified that she spent a total of Php38,653.00 in
connection with her sons death (Exh. J; J-1, J-1-A to J-1-V).

Although the accused pleaded not guilty when arraigned,[7] during the
trial, he admitted having stabbed the victim whom he referred to as
Tonying, but claimed self-defense.[8] By his account, after leaving his
uncles house at Gov. Camins, he passed by a corner and saw a group of
people drinking. They were Ramil Gregorio, Jonel Veales and
Tonying. Upon seeing him, Tonying ran away and called his brother,
Alberto Rojas. When the accused was about to reach the main road,
Alberto Rojas, Tonying and a certain Duk (brother-in-law of Tonying)
accosted him and asked him for liquor money. When he refused, the three
men got angry. After telling them that he had to go, Tonying hit him with a
spray gun (for painting), causing him to fall down. While he was in a supine
position, Tonying attempted to hit him again. It was at that point that he
was able to get hold of his knife and thrust it forward and hit someone. He

did not know who got stabbed. He then immediately fled to Ayala and later
to Lintangan, Zamboanga del Norte.[9]
The defense witness, Roden Macasantos, claimed that he was
drinking with the group of Alberto Rojas when he saw the accused having
an argument with Jomer Diaz. After they had pacified the two, he saw Diaz
run away. Later, he returned with Robelyn Rojas. Robelyn also argued
with the accused, and they were likewise pacified by the others in the
group. The dispute apparently settled, the group left Robelyn and the
accused alone. After about five minutes, they heard women
shouting. When they went to find out what it was all about, they saw
Robelyn wounded. He, however, did not see the person who stabbed
him.[10]
On January 23, 2007, the RTC rendered judgment finding the
accused guilty of murder. The trial court disposed of the case as follows:

WHEREFORE, the Court finds the accused BENANCIO

MORTERA, JR. Y BELARMINO GUILTY BEYOND REASONABLE
DOUBT of the crime of murder, as principal, for the unjustified
killing of Robelyn Rojas y Mallari and SENTENCES said accused
to suffer the penalty of RECLUSION PERPETUA and its accessory
penalties, to pay the heirs of the victim Php50, 000.00 as
indemnity for his death; Php50,000.00 as moral damages;
Php30,000.00 as exemplary damages; Php38,653.00 as actual
damages; and to pay the costs.
SO ORDERED.

In rejecting the claim of self-defense, the trial court stated that it was
not worthy of belief as it was belied by the credible testimonies of the
prosecution witnesses.[11]
The accused appealed to the Court of Appeals raising the issues of
denial of due process of law and his right to an impartial trial. He claimed

that the trial court judge, Judge Jesus Carbon, was hostile towards him and
prejudged his guilt as could be inferred from his prosecutor-like
conduct. The accused likewise reiterated his claim of self-defense.
In its decision, the Court of Appeals affirmed the decision of the
RTC with modification as to the civil liability of the accused.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190171

March 14, 2011

ALEN ROSS RODRIGUEZ and REGIDOR TULALI, Petitioners,

vs.
The Hon. BIENVENIDO BLANCAFLOR, in his capacity as the Acting Presiding Judge of the
Regional Trial Court of Palawan, Branch 52, and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court filed by
Alen Ross Rodriguez (Rodriguez), the Provincial Prosecutor of Palawan; and Regidor
Tulali (Tulali), Prosecutor I of the Office of the Provincial Prosecutor of Palawan, seeking to annul
and set aside the October 13, 2009 Decision1 of respondent Judge Bienvenido Blancaflor (Judge
Blancaflor), Acting Presiding Judge of Branch 52, Regional Trial Court, Palawan (RTC). The petition
likewise seeks to prohibit Judge Blancaflor from implementing the said decision.
In his October 13, 2009 Decision, Judge Blancaflor found petitioners Rodriguez and Tulali guilty of
direct contempt and ordered them to issue a public apology to the court. In the same decision, Judge
Blancaflor suspended them indefinitely from the practice of law. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, judgment is hereby rendered finding respondents
PROVINCIAL PROSECUTORS OF PALAWAN ALEN ROSS B. RODRIGUEZ and PROSECUTOR
REGIDOR TULALI as both guilty of direct contempt and for violation of their oath of office as
member of the bar and as officer of the Court, and hereby sentence them to suffer the penalty of
INDEFINITE SUSPENSION from practice of law and for each to pay a fine of P100,000.00.
Respondents are further directed to issue a public apology to the Court for the above grave offenses
and should they fail to do so after the finality of this Sentence, a warrant for their arrest will be
issued, and they will not be released unless they comply with the order of this Court.
Let a copy of this Order be furnished the Secretary of Justice for appropriate action.
IT IS SO ORDERED.2
The Facts
Previously pending before Judge Blancaflor was Criminal Case No. 22240 for arson (arson
case), entitled People of the Philippines v. Teksan Ami, in which Tulali was the trial prosecutor.
During the pendency of the case, Tulali was implicated in a controversy involving an alleged bribery
initiated by Randy Awayan (Awayan), the driver assigned to Judge Blancaflor under the payroll of
the Office of the Governor of Palawan, and one Ernesto Fernandez (Fernandez), to assure the
acquittal of the accused, Rolly Ami (Ami), and the dismissal of the arson case.
On June 29, 2009, a day before the scheduled promulgation of the decision in the arson case, Tulali
filed an Ex-Parte Manifestation withdrawing his appearance in the said case to prevent any
suspicion of misdemeanor and collusion. He attached to the said manifestation a copy of the

administrative complaint against Awayan filed (but eventually withdrawn) by his superior, Rodriguez,
before the Office of the Governor of Palawan.
On June 30, 2009, Judge Blancaflor rendered his decision acquitting Ami of the crime of arson.
Purportedly on the basis of the administrative complaint filed against Awayan and Rodriguez, Judge
Blancaflor summoned several witnesses including Tulali and heard their testimonies. On July 30,
2009, he issued an order summoning Rodriguez to appear before him for the purpose of holding an
inquiry on matters pertaining to his possible involvement in Tulalis filing of the exparte manifestation and the administrative complaint against Awayan, among others.
On August 7, 2009, Rodriguez filed his Motion for Clarification as to the purpose of Judge
Blancaflors continued inquiries considering that the decision in the arson case had already been
promulgated.
In an order dated August 13, 2009, Judge Blancaflor informed the petitioners that he was proceeding
against them for direct contempt and violation of their oath of office on the basis of Tulalis ExParte Manifestation.
As earlier recited, after the submission of petitioners respective position papers, Judge Blancaflor
issued the assailed October 13, 2009 Decision finding petitioners guilty of direct contempt. The
penalty of indefinite suspension from the practice of law and a fine of P100,000.00 each were
imposed upon them.
The petitioners filed a motion for reconsideration of the decision but it was denied in the assailed
November 6, 2009 Order.3
Hence, the petitioners interpose the present special civil action before this Court anchored on the
following
GROUNDS
(A)
RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND ORDER
CONSIDERING THAT PETITIONERS WERE DENIED THEIR RIGHT TO DUE PROCESS.
(B)
RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND ORDER
CONSIDERING THAT HE GROSSLY VIOLATED THE RULES ON CONTEMPT.
(C)
SINCE THE ASSAILED DECISION AND ORDER ARE VOID, A WRIT OF PROHIBITION
MUST BE ISSUED AGAINST RESPONDENT.4
Petitioners argue that the contempt proceedings are null and void for contravening their rights to due
process of law. They claim that they were denied their rights to be informed of the nature and cause
of the accusation against them, to confront the witnesses and present their own evidence. According
to petitioners, Judge Blancaflors disregard of due process constituted grave abuse of discretion
which was further aggravated by the unlawful manner of simultaneously conducting suspension and
contempt proceedings against them.

Petitioners further argue that the penalty imposed upon them in the "direct contempt" proceeding is
clearly oppressive and without basis.
In its Manifestation in Lieu of Comment,5 the Office of the Solicitor General (OSG) stated that Judge
Blancaflor committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding
petitioners guilty of direct contempt as the judgment was not based on law and evidence.
The petition is impressed with merit.
The power to punish a person in contempt of court is inherent in all courts to preserve order in
judicial proceedings and to uphold the orderly administration of justice. However, judges are
enjoined to exercise the power judiciously and sparingly, with utmost restraint, and with the end in
view of utilizing the same for correction and preservation of the dignity of the court, and not for
retaliation or vindictiveness. It bears stressing that the power to declare a person in contempt of
court must be exercised on the preservative, not the vindictive principle; and on the corrective, not
the retaliatory, idea of punishment.6 Such power, being drastic and extraordinary in its nature, should
not be resorted to unless necessary in the interest of justice.7
In this case, the Court cannot sustain Judge Blancaflors order penalizing petitioners for direct
contempt on the basis of Tulalis Ex-Parte Manifestation.
Direct contempt is any misbehavior in the presence of or so near a court as to obstruct or interrupt
the proceedings before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so.8
Based on the foregoing definition, the act of Tulali in filing the Ex-Parte Manifestation cannot be
construed as contumacious within the purview of direct contempt. It must be recalled that the subject
manifestation bore Tulalis voluntary withdrawal from the arson case to dispel any suspicion of
collusion between him and the accused. Its filing on the day before the promulgation of the decision
in the pending criminal case, did not in any way disrupt the proceedings before the court.
Accordingly, he should not be held accountable for his act which was done in good faith and without
malice.
Neither should Rodriguez be liable for direct contempt as he had no knowledge of, or participation in,
the preparation and filing of the subject manifestation. It was signed and filed by Tulali alone in his
capacity as the trial prosecutor in the arson case. The attached complaint against Awayan was filed
with the Office of the Palawan Governor, and not with the RTC.
Apparently, Judge Blancaflors conclusion, that the subject manifestation containing derogatory
matters was purposely filed to discredit the administration of justice in court, is unfounded and
without basis. There being no factual or legal basis for the charge of direct contempt, it is clear that
Judge Blancaflor gravely abused his discretion in finding petitioners guilty as charged.
Such grave abuse of authority is likewise manifested from the penalty imposed on the petitioners.
Under Section 1, Rule 71 of the Revised Rules of Court, direct contempt before the RTC or a court
of equivalent or higher rank is punishable by a fine not exceeding P2,000.00 or imprisonment not
exceeding ten (10) days, or both.
The penalty of indefinite suspension from the practice of law and to pay a fine of P100,000.00 each
with the additional order to issue a public apology to the Court under pain of arrest, is evidently
unreasonable, excessive and outside the bounds of the law.
Petitioners also fault Judge Blancaflor for non-observance of due process in conducting the
contempt proceedings. It must be emphasized that direct contempt is adjudged and punished
summarily pursuant to Section 1, Rule 71 of the Rules. Hence, hearings and opportunity to confront
witnesses are absolutely unnecessary.

In the same vein, the petitioners alleged "vilification campaign" against Judge Blancaflor cannot be
regarded as direct contempt. At most, it may constitute indirect contempt, as correctly concluded by
the OSG. For indirect contempt citation to prosper, however, the requirements under Sections 3 and
4, Rule 71 of the Rules must be satisfied, to wit:
Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has
been filed, and an opportunity given to the respondent to comment thereon within such period as
may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:
xxx
(d) any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;
x x x.
Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon
full compliance with the requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal action pending in the
court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the consolidation of the contempt charge
and the principal action for joint hearing and decision.
In the present case, Judge Blancaflor failed to observe the elementary procedure which requires
written charge and due hearing. There was no order issued to petitioners. Neither was there any
written or formal charge filed against them. In fact, Rodriguez only learned of the contempt
proceedings upon his receipt of the July 30, 2009 Order, requiring him to appear before the Court in
order to clarify certain matters contained in the said order. Tulali, on the other hand, only learned of
the proceedings when he was ordered to submit his compliance to explain how he came in
possession of the administrative complaint against Awayan.
The fact that petitioners were afforded the opportunity to file their appropriate pleadings is not
sufficient as the proceedings ex-parte to hear the witnesses testimonies had already been
completed.
In the course of his investigation, Judge Blancaflor showed that he no longer had the cold
impartiality expected of a magistrate. He had clearly prejudged petitioners as manifested in the
questions propounded in his July 30, 2009 Order, as follows:
a. Your [petitioner Rodriguezs] participation, if any, in the filing of the ex-parte manifestation
by Prosecutor Tulali together with the attachment of your letter to Gov. Joel T. Reyes dated
May 8, 2009 filed on June 29, 2009 with the Clerk of Court, Branch 52, Regional Trial Court,
Palawan;
b. Whether or not the letter was received and read by Gov. Joel T. Reyes, if you know, and if
so what was the official action thereon;
c. Before Randy Awayan was terminated on June 30, 2009 was he allowed to answer the
charges against him, i.e., calling him bag man and facilitator and Ernesto Fernandez, calling
him "extortionist."

Aside from the allegations of Salam Ami, any other evidentiary basis for your conclusion that
Ernesto Fernandez was an extortionist and that Awayan was a bag man and facilitator;
What was your role in obtaining the release of accused Rolly Ami from the City Jail without
permission from the Court on June 29, 2009 at 2:00 0clock in the afternoon and having been
interviewed in the Office of the Provincial Prosecutor (c/o Prosecutor Tulali) and how long
was Rolly Ami interviewed?
d. Rolly Ami is publicly known as illiterate (cannot read or write) but he was made to sign
affidavits in the absence of his lawyer on June 29, 2009 at 2:00 oclock in the afternoon,
why?
e. Rolly Ami was fetched upon his release by SPO4 Efren Guinto, a close associate of yours,
and directly went to the Palawan Pawnshop to pawn expensive jewelry (watch and ring),
why?
What is your participation in the media coverage Re: VILIFICATION CAMPAIGN of the Judge of
Branch 52 RTC-Palawan from July 1 to 10, 2009. Do you recognize that as a member of the Bar and
as an officer of the Court, pursuant to the rules of judicial ethics and your oath of office as a lawyer,
your loyalty and fidelity is primarily to the Court? Do you still recognize this duty and obligation?9
Indeed, Judge Blancaflor failed to conform to the standard of honesty and impartiality required of
judges as mandated under Canon 3 of the Code of Judicial Conduct.
As a public servant, a judge should perform his duties in accordance with the dictates of his
conscience and the light that God has given him. A judge should never allow himself to be moved by
pride, prejudice, passion, or pettiness in the performance of his duties. He should always bear in
mind that the power of the court to punish for contempt should be exercised for purposes that are
impersonal, because that power is intended as a safeguard not for the judges as persons but for the
functions that they exercise.10
Contempt and suspension proceedings are supposed to be separate and distinct. They have
different objects and purposes for which different procedures have been established. Judge
Blancaflor should have conducted separate proceedings. As held in the case of People v.
Godoy,11 thus:
A contempt proceeding for misbehavior in court is designed to vindicate the authority of the court; on
the other hand, the object of a disciplinary proceeding is to deal with the fitness of the court's officer
to continue in that office, to preserve and protect the court and the public from the official
ministrations of persons unfit or unworthy to hold such office. The principal purpose of the exercise
of the power to cite for contempt is to safeguard the functions of the court and should thus be used
sparingly on a preservative and not, on the vindictive principle. The principal purpose of the exercise
of disciplinary authority by the Supreme Court is to assure respect for orders of such court by
attorneys who, as much as judges, are responsible for the orderly administration of justice.
x x x. It has likewise been the rule that a notice to a lawyer to show cause why he should not be
punished for contempt cannot be considered as a notice to show cause why he should not be
suspended from the practice of law, considering that they have distinct objects and for each of them
a different procedure is established. Contempt of court is governed by the procedures laid down
under Rule 71 of the Rules of Court, whereas disciplinary actions in the practice of law are governed
by file 138 and 139 thereof.
Thus, it was grossly improper for Judge Blancaflor to consider his July 30, 2009 Order on the
contempt charge as the notice required in the disciplinary proceedings suspending petitioners from
the practice of law.
1avv phi 1

Granting that the simultaneous conduct of contempt and suspension proceedings is permitted, the
suspension of petitioners must still fail.

This Court is not unmindful of a judges power to suspend an attorney from practice for just cause
pursuant to Section 28, Rule 138 of the Revised Rules of Court. Judge Blancaflor, however, must be
reminded that the requirements of due process must be complied with, as mandated under Section
30, Rule 138 of the same Rules which specifically provides, viz:
Sec. 30. Attorney to be heard before removal or suspension. No attorney shall be removed or
suspended from the practice of his profession, until he has had full opportunity upon reasonable
notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard
by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation,
the court may proceed to determine the matterex parte.
Indeed, a lawyer may be disbarred or suspended for any misconduct showing any fault or deficiency
in his moral character, honesty, probity or good demeanor. His guilt, however, cannot be presumed.
It must indicate the dubious character of the acts done, as well as the motivation thereof.
Furthermore, a disbarred lawyer must have been given full opportunity upon reasonable notice to
answer the charges against him, produce witnesses in his own behalf, and to be heard by himself
and counsel.12
In the case at bench, there was no prior and separate notice issued to petitioners setting forth the
facts constituting the misconduct and requiring them, within a specified period from receipt thereof,
to show cause why they should not be suspended from the practice of their profession. Neither were
they given full opportunity to defend themselves, to produce evidence on their behalf and to be
heard by themselves and counsel. Undoubtedly, the suspension proceedings against petitioners are
null and void, having violated their right to due process.
Likewise, Judge Blancaflors suspension order is also void as the basis for suspension is not one of
the causes that will warrant disciplinary action. Section 27, Rule 138 of the Rules enumerates the
grounds for disbarment or suspension of a member of the Bar from his office as attorney, to wit: (1)
deceit, (2) malpractice, (3) gross misconduct in office, (4) grossly immoral conduct, (5) conviction of
a crime involving moral turpitude, (6) violation of the lawyer's oath, (7) willful disobedience of any
lawful order of a superior court, and for (8) willfully appearing as an attorney for a party without
authority to do so. Judge Blancaflor failed to show that the suspension was for any of the foregoing
grounds.
In fine, having established that Judge Blancaflor committed grave abuse of discretion amounting to
lack or excess of jurisdiction, petitioners are entitled to the remedy of prohibition under Section 2,
Rule 71 of the Rules on Contempt which provides:
SEC. 2. Remedy therefrom. - The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the
judgment shall be suspended pending resolution of such petition, provided such person files a bond
fixed by the court which rendered the judgment and conditioned that he will abide by and perform the
judgment should the petition be decided against him.
Accordingly, an order of direct contempt is not immediately executory or enforceable. The contemnor
must be afforded a reasonable remedy to extricate or purge himself of the contempt. Where the
person adjudged in direct contempt by any court avails of the remedy of certiorari or prohibition, the
execution of the judgment shall be suspended pending resolution of such petition provided the
contemnor files a bond fixed by the court which rendered the judgment and conditioned that he will
abide by and perform the judgment should the petition be decided against him.13
WHEREFORE, the petition is GRANTED. The October 13, 2009 Decision and November 6, 2009
Order are hereby annulled and set aside. Judge Bienvenido Blancaflor is hereby permanently
enjoined from implementing the said decision and order. This injunctive order is immediately
executory.
SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR.*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura,

per Special Order No. 933 dated January 24, 2011.
1

Annex "A" of Petition, rollo, pp. 41-46.

Id. at 46.

Id. at 47.

Id. at 11.

Id. at 67.

Baculi v. Belen, A.M. No. RTJ-09-2176, April 20, 2009, 586 SCRA 69, 80.

Bank of Philippine Island v. Labor Arbiter Roderick Joseph Calanza, et al., G.R. No. 180699,
October 13, 2010, citing Lu Ym v. Mahinay, G.R. No. 169476, June 16, 2006, 491 SCRA
253.

Section 1, Rule 71 of the Revised Rules of Court.

Rollo, pp. 8-9.

10

Baculi v. Belen, A.M. No. RTJ-09-2176, April 20, 2009, 586 SCRA 69, 80, citing Nazareno
v. Barnes, 220 Phil. 451, 463 (1985), citing Austria v. Masaquel, 127 Phil. 677, 690 (1967).
11

312 Phil. 977, 1032, 1033 (1995).

12

Re: Administrative Case No. 44 of the Regional Trial Court, Branch IV, Tagbilaran City,
Against Atty. Samuel C. Occena, 433 Phil. 138, 154 (2002).
13

Tiongco v. Salao, A.M. No. RTJ-06-2009, July 27, 2006, 496 SCRA 575, 583, citing Oclarit
v. Paderanga, 403 Phil 146, 152 (2001).

THIRD DIVISION
JOSE T. TUBOLA, JR.,
Petitioner,

G.R. No. 154042

Present:

- versus -

SANDIGANBAYAN AND
PEOPLE OF THE
PHILIPPINES,
Respondents
.

CARPIO MORALES, J.,

Chairperson,
BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.
Promulgated:
April
11, 2011

x - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Jose Tubola, Jr. (petitioner) appeals the December 7, 2000 Decision[1] and
June 10, 2002 Resolution of the Sandiganbayan in Criminal Case No. 12015 which
found him guilty of Malversation of Public Funds penalized under Article 217 of
the Revised Penal Code, committed as follows:
That within the period from June 25, 1982 up to November 8, 1982,
and for sometime prior thereto, in Iloilo City, Philippines and within the
jurisdiction of this Honorable Court, the said accused who was a duly
appointed cashier/collecting officer of the National Irrigation System, Iloilo
City and as such was an accountable public officer for public funds that were
in his official custody by reason of his official position, did then and there,
wilfully,
unlawfully
and
feloniously,
with
grave
abuse
of
confidence misappropriate and convert to his own personal use and
benefit the amount of NINE THREE THOUSAND FIFTY ONE PESOS AND
EIGHTY- EIGHT CENTAVOS P93,051.88 to the damage and prejudice of the
government.
CONTRARY TO LAW.[2] (emphasis and underscoring supplied)

Petitioner was the cashier of the National Irrigation Administration (NIA)Aganan, Sta. Barbara River Irrigation System in Iloilo City. On November 8,
1982, Commission on Audit (COA) State Auditing Examiners Yvonne Gotera
(Gotera) and Theresita Cajita (Cajita) conducted an audit examination of
petitioners account which indicated a shortage of P93,051.88.[3]
Gotera and Cajita thus sent a letter of demand dated November 23, 1982 to
petitioner directing him to account for the shortage.[4] Petitioner refused to receive
the letter, however, hence, Gotera and Cajita sent it by registered mail.[5]
Petitioner was thereupon charged of committing malversation of public funds
before the Sandiganbayan to which he pleaded not guilty.[6]
By the account of Gotera, the lone witness for the prosecution, petitioner had
an account balance of P30,162.46 prior to June 25, 1982; that from June 25 to
November 8, 1982, the date petitioners account was audited, his cash collections
totaled P347,995.64; that his remittances from June 25 to November 8, 1982
totaled P285,105.41; and that the total collections less total remittances amounted
to P93,051.88 as of November 8, 1982.[7]
Still by Goteras account, the audit team found in petitioners drawer
vales/chits or promissory notes or receivables signed by NIA employees
involving the total amount of P79,044.51.[8]
Petitioner, who claimed that he was assigned as cashier since 1978 and was
also in charge of payment of salaries of more than 2,000 field employees in the NIA
Jalaur Project, declared that his task of keeping the collected irrigation fees was
temporarily assigned to Editha Valeria (Valeria) upon instruction of his superior,
Regional Director Manuel Hicao,[9] for he (petitioner) was also handling the payroll
of around 2,000 employees.
Petitioner further declared that no accounting of the collected fees was
undertaken since he trusted Valeria, who directly remitted them to the bank, after
he signed the statement of collection without reading the contents thereof. [10]
Petitioner presented vales and chits involving the total amount
of P115,661.66 representing loans extended by Valeria to certain NIA employees
and even COA auditors.[11] And he identified chits and vales dated 1975 to
1981 inclusive representing loans extended prior to the audit period.[12]

By Decision of December 7, 2000,[13] the Sandiganbayan convicted petitioner

as charged, disposing as follows:
WHEREFORE, the guilt of the accused, JOSE TUBOLA, JR., having
been proven beyond reasonable doubt, the Court hereby CONVICTS him of
the crime of Malversation of Public Funds penalized under Article 217 of the
Revised Penal Code. Appreciating in his favor the mitigating circumstance of
voluntary surrender, without any aggravating circumstance to offset the same,
and applying the Indeterminate Sentence Law, the accused is hereby sentenced
to suffer the indeterminate penalty of TEN (10) years and ONE (1) day
of Prision Mayor as Minimum, to SEVENTEEN (17) years, FOUR (4) months
of Reclusion Temporal as Maximum, and the accessory penalties provided for
by law.
He is likewise ordered to indemnify the Republic of the Philippines the
amount of Ninety Three Thousand Fifty One Pesos and Eighty Eight Centavos
(P93,051.88); to pay a fine in the same amount, which is the amount of money
malversed and the costs of suit, and finally to suffer perpetual disqualification
to hold public office.
SO ORDERED.[14] (Capitalization, italics and emphasis in the
original)

His motion for reconsideration having been denied,[15] petitioner lodged the
present appeal, imputing error on the Sandiganbayan for
I
. . . CONCLUD[ING] THAT [HE] FAILED TO REBUT THE
PRESUMPTION UNDER ARTICLE 217 OF THE REVISED PENAL CODE
...
II
. . . CONCLUDING THAT [HE] HAS COMMITTED
INEXCUSABLE NEGLIGENCE IN DELEGATING THE CUSTODY OF
THE ACCOUNT TO [AN]OTHER PERSON.
III
.
.
.
RENDERING
JUDGMENT
OF
CONVICTION
NOTWITHSTANDING THE FACT THAT IT HAS BEEN CLEARLY
ESTABLISHED THAT [HE] IS NOT AN ACTUAL AND POTENTIAL
WRONGDOER.
IV
. . . VIOLAT[ING] [HIS] BASIC CONSTITUTIONAL RIGHT TO
DUE PROCESS WHEN IT ACTIVELY TOOK PART IN THE

QUESTIONING OF THE ACCUSED WHEN HE WAS PRESENTED AS A

WITNESS.[16]

To petitioner, the evidence adduced at the trial had overcome the legal
presumption that he put the missing funds to his personal use. There is, he argues,
incontrovertible fact that [he] ha[d] not received any single centavo in the form of
irrigation fees since the collections were actually received by Valeria.[17]
According to petitioner, he being the superior of Valeria, he had to rely on
her honesty and competence in the performance of her duties. He cites Arias v.
Sandiganbayan,[18] which ruled that a head of office is not required to examine
every single detail of any transaction from its inception until it is finally approved,
to deem it no longer necessary for him to examine all the details each time a
remittance of the fees was made.
Petitioner even posits that the Sandiganbayan was unsure whether he was
guilty of malversation intentionally or through negligence.
In fine, petitioner insists that as the primary task of collecting the irrigation
fees was the responsibility of Valeria, he cannot be faulted for negligence.[19]
Further, petitioner posits that he was neither an actual or potential wrongdoer
and, absent criminal intent, he should not be convicted with the full harshness of the
law.[20]
Finally, petitioner points out that his right to due process was violated, the
Justices of the Sandiganbayan having actively participated in the criminal
proceedings by tak[ing] into their own hands in proving the case against
[him].[21]
The People, through the Special Prosecutor, draws attention to the failure of
petitioner to present Valeria to shed light on her actual duties, or to at least present
a certification from then Regional Director Manuel Hicao, who allegedly ordered
Valeria to take over from petitioner the duty of collecting irrigation fees. To the
People, petitioners self-serving testimony failed to controvert the legal
presumption of misappropriation.[22]
The People goes on to contend that petitioner may still be convicted of
malversation by negligence even if the Information alleged the commission of

intentional malversation since the dolo or culpa present in the offense is only a
modality in the perpetration of the felony.[23]
Respecting the supposed violation of petitioners right to due process in light
of the alleged active participation of the Sandiganbayan Justices in questioning
him during the hearing of the case, the People underscores that it is the duty of a
trial judge to examine a witness to secure a full and clear understanding of the
facts or to test to his satisfaction the credibility of the witness[24]
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or property. Presumption of
malversation. - Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence,
shall permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property, shall suffer:
1.
The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2.
The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3.
The penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period, if the amount involved is more
than six thousand pesos but is less than twelve thousand pesos.
4.
The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty
of perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public
fund or property with which he is chargeable, upon demand by any duly
authorized officer, shall beprima facie evidence that he has put such
missing funds or property to personal uses. (italics in the original, emphasis
and underscoring supplied)

The elements of malversation of public funds are thus:

1.

that the offender is a public officer;

2.
that he had the custody or control of funds or property
by reason of the duties of his office;
3.
that those funds or property were public funds or property for
which he was accountable; and
4.
that he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another person to take them.[25]

All the above-mentioned elements are here present. Petitioner was a public
officer[26] he occupied the position of cashier at the NIA. By reason of his
position, he was tasked to regularly handle irrigation fees, which are indubitably
public funds pertaining to the NIA, and to remit them to the depositary bank.
As established by the prosecution, petitioner was the one
who remitted irrigation fees collected from June 25, 1982 to October 31,
1983[27] inclusive, so that even if the Court were to credit petitioners allegation that
Valeria had actually taken over his function of collecting the irrigation fees, the
collections were still, in fact by his admission, turned over to him.
Q:

How about the money after this payment for irrigation fees are
entered in the Collection Book for which Ms. Edita Valeria is
the one in charge, who keeps the money being paid for
irrigation fees?

A:

She is the one holding the money turned over to her by the
farmers who paid their irrigation fees, sir. I am just reporting in
my office every 7th, 15th.

PJ GARCHITORENA
Confine your answer to the question. Who keeps the irrigation
fees being collected?
A:

Edita Valeria, your Honor.

PJ GARCHITORENA
Q:

Is that part of her functions?

WITNESS
A:

No, your Honor.

Q:

Whose function is it to keep the irrigation fees?

A:

My function, your Honor.

x x x x.

Q:

After Edita Valeria receives the money representing the

irrigation fees of farmers, does she turn over the collections to
you?

A:

Yes, sir.[28] (Emphasis and underscoring supplied)

In fact, petitioners admission that his signature was required before

remitting the irrigation fees to the depositary bank reinforces the fact that he had
complete control andcustody thereof.
WITNESS
A:

Everytime she reported to me, she just fold [sic] the page of the
collection book and he [sic] tells [sic] me, this is okay and you can just
sign this statement of collection.

PJ GARCHITORENA
Q:

So you are being made to sign a statement of collection without

looking at the supporting documents to validate the correctness of the
figures nor even to determine whether the figures there and the ones
remitted to the Philippine National Bank?

A:

Yes, your Honor. I just asked her, Is this accounting okay? and she
said Yes.[29] (emphasis and underscoring supplied)

As to the element of misappropriation, indeed petitioner failed to rebut

the legal presumption that he had misappropriated the fees to his personal use, his
disclaimer being self-serving.
Why, indeed, Valeria, whom petitioner had pointed to as having full
responsibility for the collections, including their deposit to the bank, covered
by the audit period, was never presented to corroborate his claim dents his defense
as does his failure to present the Regional Director or a certification from him for
the same purpose.

As for petitioners explanation that the unaccounted fees were extended as

loans to employees as evidenced by vales and chits found in his drawer which
involved a total of P79,044.51, it fails. If this claim were true, petitioner could have
at least promptly collected them, and/or offered the testimonies of the employeesobligors to prove good faith on his part.
As for the vales and chits that he offered in evidence, as the same were
admittedly incurred before the period of audit, they are immaterial, as correctly
observed by the Sandiganbayan:

PROS GALINDEZ
Q:
Mr. Witness, since these chits and vales were incurred before the
period [covered by the ] audit, you could not have possibly used the
money collected by you in your capacity as Cashier for the period
from June 25, 1982 to November 8, 1982.
A:

Yes, sir. I have told you before that Mrs. Valeria is the one handling
my collections. I am just concentrating on my disbursements. I have
two disbursement books and my collection book is handled by Mrs.
Valeria including the payments and

x x x x.
Q:

So that these chits and vales which were merely listed by the Auditing
Examiners as they were found inside your safe are irrelevant to the
accusation?

WITNESS
A:

Where can Mrs. Valeria get the cash to extend vales, sir? Because my
collection book is balance as found by the examiners. So, she herself
extended vales from her collections.

Q:

Mr. Witness, we are speaking about the chits and vales which you
extended.

PJ GARCHITORENA
It is clear that the accused is being charged for shortage covered by the
period June 25, 1982 to November 8, 1982 and that Exhibit 1 series
refers to accounts prior to that period of audit so that you have a
point. You have covered that point already.
PROS GALINDEZ
Q:

This inventory of cash and cash items which is from 1975 to

1981, did you attempt to collect this from the payees?

A:

No, sir.[30] (emphasis and underscoring supplied)

Petitioners assertion, vis--vis his citation of the ruling in Arias, that he was
the superior of Valeria was later belied by him:
Q:
A:

But she [referring to Valeria] is under your direct supervision?

Under the Chief of Office, the Irrigation Superintendent.[31]

Aside then from the lack of a superior-subordinate relationship with Valeria,

the circumstances obtaining in Arias and the present case are entirely
different. Arias involved the culpability of a final approving authority on the basis
of criminal conspiracy, whereas the present case involves petitioners culpability on
the basis of his being theaccountable public officer.
On petitioners assertion that the Sandiganbayan erred in concluding that he
committed malversation through inexcusable negligence when the Information
alleges intentional malversation, it does not impress.
To
be
sure,
the
Sandiganbayan
convicted
petitioner
for intentional malversation on the basis of his failure to refute the presumption that
he converted the money to his personal use. Petitioner misreads the assailed
Decision since the discussion about his culpability for malversation through
inexcusable negligence was merely academic in light of the postulation that a
subordinate (Valeria) was at fault.[32]
Nonetheless, in Cabello v. Sandiganbayan,[33] the Court ratiocinated that:
On the other hand, petitioner contends that the bulk of said amount
represented "vales" he granted to the postal employees and the minor portion
consisted of unremitted, unreimbursed or uncollected amounts. His very own
explanation, therefore, shows that the embezzlement, as claimed by the
prosecution, or the expenditures, as posited by him, were not only
unauthorized but intentionally and voluntarily made. Under no stretch of
legal hermeneutics can it be contended that these funds were lost through
abandonment or negligence without petitioner's knowledge as to put the loss
within a merely culpable category. From the contention of either party, the
misappropriation was intentional and not through negligence.
Besides, even on the putative assumption that the evidence against
petitioner yielded a case of malversation by negligence but the information
was for intentional malversation, under the circumstances of this case his
conviction under the first mode of misappropriation would still be in order.

Malversation is committed either intentionally or by negligence. The dolo or

theculpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper. A
possible exception would be when the mode of commission alleged in the
particulars of the indictment is so far removed from the ultimate categorization
of the crime that it may be said due process was denied by deluding the
accused into an erroneous comprehension of the charge against him. That no
such prejudice was occasioned on petitioner nor was he beleaguered in his
defense is apparent from the records of this case.[34] (italics in the original,
emphasis and underscoring supplied)

Finally, petitioners claim of violation of his right to due process vis--vis the
Sandiganbayan Justices active participation during the trial fails too. For he has
not specified any instance of supposed bias of the Justices, or cited what questions
adversely affected him. The record does not reflect any question or objection
raised by petitioners counsel during the trial to the Justices questions or the tenor
or manner they were propounded. Nor does the record reflect any move to inhibit
the Justices if petitioner perceived that they were biased against him.
That a magistrate may propound clarificatory questions to secure a full and
clear understanding of the facts in the case is not proscribed.[35]

WHEREFORE, the petition is DENIED. The December 7, 2000 Decision

and June 10, 2002 Resolution of the Sandiganbayan in Criminal Case No. 12015
areAFFIRMED.
SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]

[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]

[27]

[28]
[29]
[30]
[31]
[32]

[33]
[34]
[35]

Rollo, pp. 38-56. Penned by Associate Justice Anacleto D. Badoy, Jr. (now retired) with Associate
Justices Minita V. Chico-Nazario (now a retired member of the Court) and Ma. Cristina Cortez-Estrada
(now retired).
Records, Volume I, p. 1; Information dated November 25, 1986.
Report of Examination; Exhibit A, Folder of Exhibits.
Exhibit C, Folder of Exhibits.
Exhibits C-1 and C-2, Folder of Exhibits.
Records, Vol. I, p. 207.
TSN, August 26, 1988, p. 11.
TSN, November 22, 1988, pp. 5-6.
TSN, Oct. 11, 1990, pp. 6-9.
Id. at 9-11.
Id. at 33-34.
Id. at 34-36,
Rollo, pp. 38-56.
Id. at 55.
Resolution of June 10, 2002, pp. 57-59.
Id. at 14-15.
Id. at 16-22.
G.R. No. 81563, December 19, 1989, 180 SCRA 390.
Rollo, pp. 26-27.
Id. at 29-30.
Id. at 31.
Id. at 94-97.
Id. at 103-104.
Id. at 106-107.
Ocampo III v. People, G.R. Nos. 156547-51, February 4, 2008, 543 SCRA 487.
Art. 203 of the Revised Penal Code states that: Who are public officers. - For the purpose of applying the
provisions of this and the preceding titles of this book, any person who, by direct provision of the law,
popular election or appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its
branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed
to be a public officer.
TSN, November 22, 1988, pp. 3-5. See also Exhibit A-2 or the Schedule of Validated Remittances of
the Folder of Exhibits.
TSN, October 11, 1990, pp. 8-9.
Id. at 11.
Id. at 35-36.
Id. at 34.
The Sandiganbayan Decision states: x x x x Assuming arguendo that his assistant was the one at fault,
the glaring truth is that the custody of the same remains his ultimate responsibility and accountability. His
purported trust and confidence in Valeria only serves to establish his inexcusable negligence. x x x x
G.R. No. 93885, May 14, 1991, 197 SCRA 94.
Id. at 103.
People v. Hatton, G.R. No. 85043, June 16, 1984, 210 SCRA 1.

Republic of the Philippines

Supreme Court
Manila
FIRST DIVISION
JOSE R. CATACUTAN,
Petitioner,

G.R. No. 175991

Present:
CORONA, C.J., Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated:
August 31, 2011

x-------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
It is well within the Courts discretion to reject the presentation of evidence which
it judiciously believes irrelevant and impertinent to the proceeding on hand.
Before us is a Petition for Review on Certiorari filed by petitioner Jose R.
Catacutan seeking to set aside and reverse the Decision[1] dated December 7, 2006 of
the Sandiganbayanwhich affirmed the Decision[2] dated July 25, 2005 of the Regional
Trial Court (RTC), Branch 30, Surigao City convicting him of the crime of violation of
Section 3(e) of Republic Act (RA) No. 3019 otherwise known as the Anti-Graft and
Corrupt Practices Act.
Factual Antecedents
The antecedent facts are clear and undisputed.
Private complainant Georgito Posesano was an Instructor II with Salary Grade 13
while private complainant Magdalena Divinagracia was an Education Program Specialist

II with Salary Grade 16, both at the Surigao del Norte School of Arts and Trades
(SNSAT).[3]
On June 2, 1997, the Commission on Higher Education (CHED) Caraga
Administrative Region, appointed and promoted private complainants as Vocational
Instruction Supervisor III with Salary Grade 18 at SNSAT.[4] These promotional
appointments were duly approved and attested as permanent by the Civil Service
Commission (CSC) on June 3, 1997.[5] Being then the Officer-In-Charge of SNSAT, the
approved appointments were formally transmitted to the petitioner on June 6,
1997,[6] copy furnished the concerned appointees. Despite receipt of the appointment
letter, the private complainants were not able to assume their new position since
petitioner made known that he strongly opposed their appointments and that he would
not implement them despite written orders from CHED[7] and the CSC, Caraga Regional
Office.[8] Thus, on August 2, 1997, private complainants lodged a formal complaint
against petitioner for grave abuse of authority and disrespect of lawful orders before the
Office of the Ombudsman for Mindanao.[9]
In an Information dated February 27, 1998, petitioner was charged before the
RTC of Surigao City with violation of Section 3(e) of RA 3019 as amended, committed
in the following manner, to wit:
That in June 1997 or sometime thereafter, in Surigao City, Philippines and
within the jurisdiction of this Honorable Court, the accused JOSE R. CATACUTAN,
OIC Principal of Surigao del Norte School of Arts and Trades (SNSAT), Surigao City,
with salary grade below 27, while in the performance of his official duties, thus
committing the act in relation to his office, willfully, feloniously and unlawfully did then
and there, with grave abuse of authority and evident bad faith, refuse to implement the
promotion/appointments of Georgito Posesano and Magdalena A. Divinagracia as
Vocational Supervisors III notwithstanding the issuance of the valid appointments by the
appointing authority and despite the directive of the Regional Director of the
Commission on Higher Education and the Civil Service Commission in the region,
thereby causing undue injury to complainants who were supposed to receive a higher
compensation for their promotion, as well as [to] the school and the students who were
deprived of the better services which could have been rendered by Georgito Posesano
and Magdalena A. Divinagracia as Vocational Instruction Supervisors [III].
CONTRARY TO LAW.[10]

During arraignment on September 22, 1998, petitioner pleaded not guilty.

For his defense, petitioner admitted that he did not implement the promotional
appointments of the private complainants because of some procedural lapses or
infirmities attending the preparation of the appointment papers. According to him, the

appointment papers were prepared by SNSAT Administrative Officer, Crispin Noguera,

using blank forms bearing the letterhead of SNSAT and not of the CHED Regional
Office who made the appointments. He also averred that the appointment papers cited
the entire plantilla[11] (1996 Plantilla-OSEC-DECSB-VOCIS3-19, Pages 116) instead of only the particular page on which the vacant item occurs. He likewise
claimed that he received only the duplicate copies of the appointments contrary to the
usual procedure where the original appointment papers and other supporting documents
are returned to his office. Finally, he asserted that the transmittal letter from the CHED
did not specify the date of effectivity of the appointments. These alleged infirmities, he
contended, were formally brought to the attention of the CHED Regional Director on
June 20, 1997[12] who, however, informed him that the subject appointments were regular
and valid and directed him to implement the same. Still not satisfied, petitioner sought
the intercession of CHED Chairman Angel C. Alcala in the settlement of this
administrative problem[13] but the latter did not respond. Petitioner alleged that his refusal
to implement the appointments of the private complainants was not motivated by bad
faith but he just wanted to protect the interest of the government by following strict
compliance in the preparation of appointment papers.
Ruling of the Regional Trial Court
On July 25, 2005, the RTC rendered its Decision[14] holding that the act of the
petitioner in defying the orders of the CHED and the CSC to implement the subject
promotional appointments despite the rejection of his opposition, demonstrates his
palpable and patent fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. The trial court ruled that petitioners
refusal to implement the appointments of the private complainants had caused undue
injury to them. Thus, it held petitioner guilty of the crime charged and accordingly
sentenced him to suffer the penalty of imprisonment of six (6) years and one (1) month
and perpetual disqualification from public office.
The RTC disposed of the case as follows:
WHEREFORE, finding the accused JOSE R. CATACUTAN guilty beyond
reasonable doubt [of] VIOLATION OF SECTION 3(e) of R.A. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, this Court hereby imposes upon him the
penalty of imprisonment [of] SIX (6) YEARS and ONE (1) MONTH and PERPETUAL
DISQUALIFICATION FROM PUBLIC OFFICE, and to pay the costs.
The aforementioned accused is hereby ordered to pay private complainants
Georgito Posesano and Magdalena Divinagracia the sum of Fifty Thousand Pesos
(P50,000.00) each, for moral damages.
SO ORDERED.[15]

Petitioner moved for reconsideration[16] but it was denied in an Order[17] dated

October 13, 2005.
Ruling of the Sandiganbayan
On
appeal,
petitioners
conviction
was
affirmed in
toto by
[18]
the Sandiganbayan. The appellate court ruled that the Decision of the trial court, being
supported by evidence and firmly anchored in law and jurisprudence, is correct. It held
that petitioner failed to show that the trial court committed any reversible error in
judgment.
Hence, this petition.
In the Courts Resolution[19] dated February 26, 2007, the Office of the Solicitor
General (OSG) was required to file its Comment. The OSG filed its Comment[20] on
June 5, 2007 while the Office of the Special Prosecutor filed the Comment[21] for
respondent People of the Philippines on February 22, 2008.
Issue
The sole issue for consideration in this present petition is:
Whether the [petitioners] constitutional right[s] to due process x x x and x x x
equal protection of [the] law x x x were violated x x x [when he was denied] the
opportunity to present [in] evidence [the Court of Appeals] Decision dated April 18,
2001 x x x in CA-G.R. SP No. 51795 entitled Jose R. Catacutan, petitioner, versus
Office of the Ombudsman for Mindanao, et al., respondents.[22]

Invoking the constitutional provision on due process,[23] petitioner argues that the
Decision rendered by the trial court is flawed and is grossly violative of his right to be
heard and to present evidence. He contends that he was not able to controvert the
findings of the trial court since he was not able to present the Court of Appeals (CAs)
Decision in CA-G.R. SP No. 51795 which denied the administrative case filed against
him and declared that his intention in refusing to implement the promotions of the private
complainants falls short of malice or wrongful intent.
Our Ruling
The petition lacks of merit.

Petitioner was not deprived of his right to due

process.
Due process simply demands an opportunity to be heard.[24] Due process is
satisfied when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy.[25] Where an opportunity to be heard either through
oral arguments or through pleadings is accorded, there is no denial of procedural due
process.[26]
Guided by these established jurisprudential pronouncements, petitioner can hardly
claim denial of his fundamental right to due process. Records show that petitioner was
able to confront and cross-examine the witnesses against him, argue his case vigorously,
and explain the merits of his defense. To reiterate, as long as a party was given the
opportunity to defend his interests in due course, he cannot be said to have been denied
due process of law for the opportunity to be heard is the better accepted norm of
procedural due process.
There is also no denial of due process when the trial court did not allow petitioner
to introduce as evidence the CA Decision in CA-G.R. SP No. 51795. It is well within the
courts discretion to reject the presentation of evidence which it judiciously believes
irrelevant and impertinent to the proceeding on hand. This is specially true when the
evidence sought to be presented in a criminal proceeding as in this case, concerns an
administrative matter. As the Sandiganbayan aptly remarked:
The RTC committed no error in judgment when it did not allow the Accusedappellant to present the Decision of the Court of Appeals in CA-G.R. SP No. 51795
(Jose R. Catacutan vs. Office of the Ombudsman). The findings in administrative cases
are not binding upon the court trying a criminal case, even if the criminal proceedings are
based on the same facts and incidents which gave rise to the administrative matter. The
dismissal of a criminal case does not foreclose administrative action or necessarily gives
the accused a clean bill of health in all respects. In the same way, the dismissal of an
administrative case does not operate to terminate a criminal proceeding with the same
subject matter. x x x[27]

This action undertaken by the trial court and sustained by the appellate court was
not without legal precedent. In Paredes v. Court of Appeals,[28] this Court ruled:
It is indeed a fundamental principle of administrative law that administrative
cases are independent from criminal actions for the same act or omission. Thus, an
absolution from a criminal charge is not a bar to an administrative prosecution, or vice
versa. One thing is administrative liability; quite another thing is the criminal liability for
the same act.

xxxx
Thus, considering the difference in the quantum of evidence, as well as the
procedure followed and the sanctions imposed in criminal and administrative
proceedings, the findings and conclusions in one should not necessarily be binding on the
other. Notably, the evidence presented in the administrative case may not necessarily be
the same evidence to be presented in the criminal cases. x x x

In Nicolas v. Sandiganbayan,[29] the Court reiterated:

This Court is not unmindful of its rulings that the dismissal of an administrative
case does not bar the filing of a criminal prosecution for the same or similar acts subject
of the administrative complaint and that the disposition in one case does not inevitably
govern the resolution of the other case/s and vice versa. x x x

On the basis of the afore-mentioned precedents, the Court has no option but to
declare that the courts below correctly disallowed the introduction in evidence of the CA
Decision. Due process of law is not denied by the exclusion of irrelevant, immaterial, or
incompetent evidence, or testimony of an incompetent witness. It is not an error to refuse
evidence which although admissible for certain purposes, is not admissible for the
purpose which counsel states as the ground for offering it.[30]
At any rate, even assuming that the trial court erroneously rejected the introduction
as evidence of the CA Decision, petitioner is not left without legal recourse. Petitioner
could have availed of the remedy provided in Section 40, Rule 132 of the Rules of Court
which provides:
Section 40. Tender of excluded evidence. If documents or things offered in
evidence are excluded by the court, the offeror may have the same attached to or made
part of the record. If the evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the substance of the proposed
testimony.

As observed by the appellate court, if the petitioner is keen on having the RTC
admit the CAs Decision for whatever it may be worth, he could have included the same
in his offer of exhibits. If an exhibit sought to be presented in evidence is rejected, the
party producing it should ask the courts permission to have the exhibit attached to the
record.

As things stand, the CA Decision does not form part of the records of the case,
thus it has no probative weight. Any evidence that a party desires to submit for the
consideration of the court must be formally offered by him otherwise it is excluded and
rejected and cannot even be taken cognizance of on appeal. The rules of procedure and
jurisprudence do not sanction the grant of evidentiary value to evidence which was not
formally offered.
Section 3(e) of RA 3019, as amended, provides:
Section 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government or giving
any private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

Under said provision of law, three essential elements must thus be satisfied, viz:
1.

The accused must be a public officer discharging administrative, judicial or official

functions;

2.

He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and

3.

His action caused any undue injury to any party, including the government or gave
any private party unwarranted benefits, advantage or preference in the discharge of
his functions.[31]

All the above enumerated elements of the offense charged have been successfully
proven by the prosecution.
First, petitioner could not have committed the acts imputed against him during the
time material to this case were it not for his being a public officer, that is, as the OfficerIn-Charge (Principal) of SNSAT. As such public officer, he exercised official duties and
functions, which include the exercise of administrative supervision over the school such
as taking charge of personnel management and finances, as well as implementing
instruction as far as appointment of teachers.[32]

Second, petitioner acted with evident bad faith in refusing to implement the
appointments of private complainants. As the Sandiganbayan aptly remarked:
The records clearly indicate that the refusal of Catacutan to implement the
subject promotion was no longer anchored on any law or civil service rule as early [as]
the July 14, 1997 letter of the CHED Regional Director addressing the four issues raised
by the Accused-appellant in the latters protest letter. x x x In light of the undisputed
evidence presented to the trial court that Catacutans reason for not implementing the
appointments was a personal dislike or ill feelings towards Posesano, this Court believes
that Catacutans refusal was impelled by an ill motive or dishonest purpose characteristic
of bad faith. x x x
xxxx
In the August 1, 1997 [m]emorandum issued by the CHED Regional Director,
Catacutan was once again directed, in strong words, to cease and desist from further
questioning what has been lawfully acted upon by competent authorities. Catacutan
deliberately ignored the memorandum and even challenged the private complainants to
file a case against him. Such arrogance is indicative of the bad faith of the accusedappellant.
Yet again, the [CSC] Regional Director wrote the Accused-appellant on
September 5, 1997, clarifying with finality the validity of the appointment. Still,
Accused-appellant failed to implement the subject promotions. This stubborn refusal to
implement the clear and repeated directive of competent authorities established the
evident bad faith of Catacutan and belies any of his claims to the contrary.[33]

While petitioner may have laudable objectives in refusing the implementation of

private complainants valid appointments, the Court fails to see how he can still claim
good faith when no less than the higher authorities have already sustained the validity of
the subject appointments and have ordered him to proceed with the implementation. It
is well to remember that good intentions do not win cases, evidence does.[34]
Third, undue injury to the private complainants was duly proven to the point of
moral certainty. Here, the private complainants suffered undue injury when they were
not able to assume their official duties as Vocational Supervisors III despite the issuance
of their valid appointments. As borne out by the records, they were able to assume their
new positions only on November 19, 1997. So in the interregnum from June to
November 1997, private complainants failed to enjoy the benefits of an increased salary
corresponding to their newly appointed positions. Likewise established is that as a result
of petitioners unjustified and inordinate refusal to implement their valid appointments
notwithstanding clear and mandatory directives from his superiors, the private
complainants suffered mental anguish, sleepless nights, serious anxiety warranting the
award of moral damages under Article 2217 of the New Civil Code.

At this point, the Court just needs to stress that the foregoing are factual matters
that were threshed out and decided upon by the trial court which were subsequently
affirmed by theSandiganbayan. Where the factual findings of both the trial court and the
appellate court coincide, the same are binding on this Court. In any event, apart from
these factual findings of the lower courts, this Court in its own assessment and review of
the records considers the findings in order.
WHEREFORE, the petition is DENIED and the assailed Decision of
the Sandiganbayan promulgated on December 7, 2006 is AFFIRMED.
SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARTIN S. VILARAMA, JR.

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]

[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]

[24]

[25]
[26]

[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]

Rollo, pp. 48-65; penned by Associate Justice Jose R. Hernandez and concurred in by Associate Justices
Gregory S. Ong and Rodolfo A. Ponferrada.
Id. at 30-36; penned by Judge Floripinas C. Buyser.
Now Surigao State College of Technology.
Exhibits B and C, Folder of Exhibits No. II, pp. 310-311.
Exhibits B-5 and C-5, id.
Exhibit A, id. at 309.
Exhibits D and G, id. at 312-313.
Exhibit H, id. at 317.
Exhibit J, id. at 318-320.
Sandiganbayan rollo, vol. I, p. 1.
Rollo, p. 51.
Exhibits 1 and 1-A, Folder of Exhibits No. II, pp. 427-428.
Exhibits 2 and 2-A, id. at 429-430.
Supra note 2.
Rollo, p. 36.
Id. at 37-42.
Id. at 46-47.
Id. at 48-65.
Id. at 66.
Id. at 78-88.
Id. at 402-417.
Id. at 17.
CONSTITUTION, Article III, Section 1. No person shall be deprived of life, liberty or property without due
process of law nor shall any person be denied the equal protection of the laws.
Philippine Deposit Insurance Corporation v. Commission on Audit, G.R. No. 171548, February 22, 2008, 546
SCRA 473, 483.
People v. Dela Cruz, G.R. No. 173308, June 25, 2008, 555 SCRA 329, 340.
Equitable PCI Banking Corporation v. RCBC Capital Corporation, G.R. No. 182248, December 18, 2008,
574 SCRA 858, 883.
Rollo, p. 57.
G.R. No. 169534, July 30, 2007, 528 SCRA 577, 587-589.
G.R. Nos. 175930-31, February 11, 2008, 544 SCRA 324, 345.
People v. Larraaga, 466 Phil. 324, 373-374 (2004).
Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA 47, 53-54.
TSN, June 17, 2004, p. 5.
Rollo, pp. 62-63.
Pleyto v. Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG), G.R. No.
169982, November 23, 2007, 538 SCRA 534, 590.

SECOND DIVISION
SUSIE CHAN-TAN,
Petitioner,

G.R. No. 167139

Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

- versus -

JESSE C. TAN,
Promulgated:
Respondent.
February 25, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO, J.:
The Case
This is a petition for review[1] of (i) the 17 May 2004
Resolution[2] amending the 30 March 2004 Decision[3] and (ii) the 15
February 2005 Resolution[4] of the Regional Trial Court of Quezon City,
Branch 107, in Civil Case No. Q-01-45743. In its 30 March 2004 Decision,
the trial court declared the marriage between petitioner Susie Chan-Tan
and respondent Jesse Tan void under Article 36 of the Family Code.
Incorporated as part of the decision was the 31 July 2003 Partial
Judgment[5] approving the Compromise Agreement[6] of the parties. In its 17
May 2004 Resolution, the trial court granted to respondent custody of the
children, ordered petitioner to turn over to respondent documents and titles
in the latters name, and allowed respondent to stay in the family dwelling.
In its 15 February 2005 Resolution, the trial court denied petitioners motion
for reconsideration of the 28 December 2004 Resolution[7] denying

petitioners motion to dismiss and motion for reconsideration of the 12

October 2004 Resolution,[8] which in turn denied for late filing petitioner's
motion for reconsideration of the 17 May 2004 resolution.
The Facts
Petitioner and respondent were married in June of 1989 at Manila
Cathedral in Intramuros, Manila.[9] They were blessed with two sons: Justin,
who was born in Canada in 1990 and Russel, who was born in the
Philippines in 1993.[10]
In 2001, twelve years into the marriage, petitioner filed a case for the
annulment of the marriage under Article 36 of the Family Code. The parties
submitted to the court a compromise agreement, which we quote in full:
1.

2.

The herein parties mutually agreed that the two (2) lots located at Corinthian
Hills, Quezon City and more particularly described in the Contract to Sell,
marked in open court as Exhibits H to H-3 shall be considered as part of
the presumptive legitimes of their two (2) minor children namely, Justin Tan
born on October 12, 1990 and Russel Tan born on November 28, 1993.
Copies of the Contract to Sell are hereto attached as Annexes A and B
and made integral parts hereof.

Susie Tan hereby voluntarily agrees to exclusively shoulder and pay out of
her own funds/assets whatever is the remaining balance or unpaid amounts
on said lots mentioned in paragraph 1 hereof directly with Megaworld
Properties, Inc., until the whole purchase or contract amounts are fully paid.
Susie Tan is hereby authorized and empowered to directly negotiate, transact, pay and deal with the
seller/developer Megaworld Properties, Inc., in connection with the Contract to Sell marked as Annexes
A and B hereof.
The property covered by CCT No. 3754 of the Registry of Deeds of Quezon City and located at Unit O,
Richmore Town Homes 12-B Mariposa St., Quezon City shall be placed in co-ownership under the name
of Susie Tan (1/3), Justin Tan (1/3) and Russel Tan (1/3) to the exclusion of Jesse Tan.
The property covered by TCT No. 48137 of the Registry of Deeds of Quezon City and located at View
Master Town Homes, 1387 Quezon Avenue, Quezon City shall be exclusively owned by Jesse Tan to the
exclusion of Susie Tan.
The undivided interest in the Condominium Unit in Cityland Shaw. Jesse Tan shall exclusively own blvd.
to the exclusion of Susie Tan.
The shares of stocks, bank accounts and other properties presently under the respective names of Jesse
Tan and Susie Tan shall be exclusively owned by the spouse whose name appears as the
registered/account owner or holder in the corporate records/stock transfer books, passbooks and/or the
one in possession thereof, including the dividends/fruits thereof, to the exclusion of the other spouse.
Otherwise stated, all shares, bank accounts and properties
registered and under the name and/or in the possession of
Jesse Tan shall be exclusively owned by him only and all
shares, accounts and properties registered and/or in the
possession and under the name of Susie Tan shall be
exclusively owned by her only.
However, as to the family corporations of Susie Tan, Jesse Tan shall
execute any and all documents transferring the shares of stocks registered in
his name in favor of Susie Tan, or Justin Tan/Russel Tan. A copy of the list
of the corporation owned by the family of Susie Tan is hereto attached as
Annex C and made an integral part hereof.

The parties shall voluntarily and without need of demand turn over to the other spouse any and all
original documents, papers, titles, contracts registered in the name of the other spouse that are in their
respective possessions and/or safekeeping.
3. Thereafter and upon approval of this Compromise Agreement by the
Honorable Court, the existing property regime of the spouses shall be
dissolved and shall now be governed by Complete Separation of Property.
Parties expressly represent that there are no known creditors that will be
prejudiced by the present compromise agreement.
The parties shall have joint custody of their minor children. However, the two (2) minor children shall stay
with their mother, Susie Tan at 12-B Mariposa St., Quezon City.
The husband, Jesse Tan, shall have the right to bring out the two (2)
children every Sunday of each month from 8:00 AM to 9:00 PM. The minor
children shall be returned to 12-B Mariposa Street, Quezon City on or before
9:00 PM of every Sunday of each month.
The husband shall also have the right to pick up the two (2) minor children in school/or in the
house every Thursday of each month. The husband shall ensure that the children be home by 8:00 PM of
said Thursdays.
During the summer vacation/semestral break or Christmas vacation of the children, the parties shall
discuss the proper arrangement to be made regarding the stay of the children with Jesse Tan.
Neither party shall put any obstacle in the way of the maintenance of the love and affection
between the children and the other party, or in the way of a reasonable and proper companionship
between them, either by influencing the children against the other, or otherwise; nor shall they do
anything to estrange any of them from the other.
The parties agreed to observe civility, courteousness and politeness in dealing with each other and
shall not insult, malign or commit discourteous acts against each other and shall endeavor to cause their
other relatives to act similarly.
4. Likewise, the husband shall have the right to bring out and see the children
on the following additional dates, provided that the same will not impede or
disrupt their academic schedule in Xavier School, the dates are as follows:
a. Birthday of Jesse Tan
b.
Birthday of Grandfather and Grandmother, first cousins and uncles and aunties
c.
Father's Day
d.
Death Anniversaries of immediate members of the family of Jesse
Tan
e.
During the Christmas seasons/vacation the herein parties will agree on such dates as when the
children can stay with their father. Provided that if the children stay with their father on Christmas Day
th
th
from December 24 to December 25 until 1:00 PM the children will stay with their mother on December
31 until January 1, 1:00 PM, or vice versa.
The husband shall always be notified of all school activities of the children and shall see to it that
he will exert his best effort to attend the same.
5. During the birthdays of the two (2) minor children, the parties shall as far as
practicable have one celebration.
Provided that if the same is not possible, the Husband (Jesse Tan)
shall have the right to see and bring out the children for at least four (4)
hours during the day or the day immediately following/or after the
birthday, if said visit or birthday coincides with the school day.
6. The existing Educational Plans of the two children shall be used and utilized
for their High School and College education, in the event that the Educational
Plans are insufficient to cover their tuition, the Husband shall shoulder the
tuition and other miscellaneous fees, costs of books and educational
materials, uniform, school bags, shoes and similar expenses like summer
workshops which are taken in Xavier School, which will be paid directly by
Jesse Tan to the children's school when the same fall due. Jesse Tan, if
necessary, shall pay tutorial expenses, directly to the tutor concerned.
The husband further undertake to pay P10,000.00/monthly support
pendente lite to be deposited in the ATM Account of SUSIE CHAN with
th
account no. 3-189-53867-8 Boni Serrano Branch effective on the 15 of each
month. In addition Jesse Tan undertakes to give directly to his two (2) sons
every Sunday, the amount needed and necessary for the purpose of the
daily meals of the two (2) children in school.
7. This Compromise Agreement is not against the law, customs, public
policy, public order and good morals. Parties hereby voluntarily agree and

bind themselves to execute and sign any and all documents to give effect to
[11]
this Compromise Agreement.

On 31 July 2003, the trial court issued a partial judgment[12] approving

the compromise agreement. On 30 March 2004, the trial court rendered a
decision declaring the marriage void under Article 36 of the Family Code on
the ground of mutual psychological incapacity of the parties. The trial court
incorporated in its decision the compromise agreement of the parties on the
issues of support, custody, visitation of the children, and property relations.
Meanwhile, petitioner cancelled the offer to purchase the Corinthian
Hills Subdivision Lot No. 12, Block 2. She authorized Megaworld Corp. to
allocate the amount ofP11,992,968.32 so far paid on the said lot in the
following manner:
(a) P3,656,250.04 shall be transferred to fully pay the other lot in Corinthian Hills on Lot
11, Block 2;
(b) P7,783,297.56 shall be transferred to fully pay the contract price in Unit 9H of the 8 Wack Wack Road
Condominium project; and

(c) P533,420.72 shall be forfeited in favor of Megaworld Corp.

to cover the marketing and administrative costs of Corinthian
Hills Subdivision Lot 12, Block 2.[13]
Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of
Corinthian Hills to other interested buyers. It also appears from the records
that petitioner left the country bringing the children with her.
Respondent filed an omnibus motion seeking in the main custody of
the children. The evidence presented by respondent established that
petitioner brought the children out of the country without his knowledge and
without prior authority of the trial court; petitioner failed to pay
the P8,000,000 remaining balance for the Megaworld property which, if
forfeited would prejudice the interest of the children; and petitioner failed to
turn over to respondent documents and titles in the latters name.
Thus, the trial court, in its 17 May 2004 resolution, awarded to
respondent custody of the children, ordered petitioner to turn over to
respondent documents and titles in the latters name, and allowed
respondent to stay in the family dwelling in Mariposa, Quezon City.
Petitioner
filed
on
28
June
2004
a
motion
for
[14]
reconsideration alleging denial of due process on account of accident,
mistake, or excusable negligence. She alleged she was not able to present

evidence because of the negligence of her counsel and her own fear for
her life and the future of the children. She claimed she was forced to leave
the country, together with her children, due to the alleged beating she
received from respondent and the pernicious effects of the latters
supposed gambling and womanizing ways. She prayed for an increase in
respondents monthly support obligation in the amount of P150,000.
Unconvinced, the trial court, in its 12 October 2004
Resolution,[15] denied petitioners motion for reconsideration, which was filed
beyond the 15-day reglementary period. It also declared petitioner in
contempt of court for non-compliance with the partial judgment and the 17
May 2004 resolution. The trial court also denied petitioners prayer for
increase in monthly support. The trial court reasoned that since petitioner
took it upon herself to enroll the children in another school without
respondents knowledge, she should therefore defray the resulting increase
in their expenses.
On 4 November 2004, petitioner filed a motion to dismiss[16] and a
motion for reconsideration[17] of the 12 October 2004 Resolution. She
claimed she was no longer interested in the suit. Petitioner stated that the
circumstances in her life had led her to the conclusion that withdrawing the
petition was for the best interest of the children. She prayed that an order
be issued vacating all prior orders and leaving the parties at the status quo
ante the filing of the suit.
In its 28 December 2004 Resolution,[18] the trial court denied both the
motion to dismiss and the motion for reconsideration filed by petitioner. It
held that the 30 March 2004 decision and the 17 May 2004 resolution had
become final and executory upon the lapse of the 15-day reglementary
period without any timely appeal having been filed by either party.
Undeterred, petitioner filed a motion for reconsideration of the 28
December 2004 resolution, which the trial court denied in its 15 February
2005 resolution.[19] The trial court then issued a Certificate of Finality[20] of the
30 March 2004 decision and the 17 May 2004 resolution.
The Trial Courts Rulings
The 30 March 2004 Decision[21] declared the marriage between the
parties void under Article 36 of the Family Code on the ground of mutual
psychological incapacity. It incorporated the 31 July 2003 Partial
Judgment[22] approving the Compromise Agreement[23] between the parties.
The 17 May 2004 Resolution[24] amended the earlier partial judgment in

granting to respondent custody of the children, ordering petitioner to turn

over to respondent documents and titles in the latters name, and allowing
respondent to stay in the family dwelling in Mariposa, Quezon City.
The 15 February 2005 Resolution[25] denied petitioners motion for
reconsideration of the 28 December 2004 Resolution[26] denying petitioners
motion to dismiss and motion for reconsideration of the 12 October 2004
Resolution,[27] which in turn denied for late filing petitioners motion for
reconsideration of the 17 May 2004 resolution.
The Issue
Petitioner raises the question of whether the 30 March 2004 decision
and the 17 May 2004 resolution of the trial court have attained finality
despite the alleged denial of due process.
The Courts Ruling
The petition has no merit.
Petitioner contends she was denied due process when her counsel
failed to file pleadings and appear at the hearings for respondents omnibus
motion to amend the partial judgment as regards the custody of the
children and the properties in her possession. Petitioner claims the trial
court issued the 17 May 2004 resolution relying solely on the testimony of
respondent. Petitioner further claims the trial court erred in applying to her
motion to dismiss Section 7 of the Rule on the Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages. Petitioner
argues that if indeed the provision is applicable, the same is
unconstitutional for setting an obstacle to the preservation of the family.
Respondent maintains that the 30 March 2004 decision and the 17
May 2004 resolution of the trial court are now final and executory and could
no longer be reviewed, modified, or vacated. Respondent alleges petitioner
is making a mockery of our justice system in disregarding our lawful
processes. Respondent stresses neither petitioner nor her counsel
appeared in court at the hearings on respondent's omnibus motion or on
petitioners motion to dismiss.

The issue raised in this petition has been settled in the case
of Tuason v. Court of Appeals.[28] In Tuason, private respondent therein filed
a petition for the annulment of her marriage on the ground of her
husbands psychological incapacity. There, the trial court rendered
judgment declaring the nullity of the marriage and awarding custody of the
children to private respondent therein. No timely appeal was taken from the
trial courts judgment.
We held that the decision annulling the marriage had already become
final and executory when the husband failed to appeal during the
reglementary period. The husband claimed that the decision of the trial
court was null and void for violation of his right to due process. He argued
he was denied due process when, after failing to appear on two scheduled
hearings, the trial court deemed him to have waived his right to present
evidence and rendered judgment based solely on the evidence presented
by private respondent. We upheld the judgment of nullity of the marriage
even if it was based solely on evidence presented by therein private
respondent.
We also ruled in Tuason that notice sent to the counsel of record is
binding upon the client and the neglect or failure of the counsel to inform
the client of an adverse judgment resulting in the loss of the latters right to
appeal is not a ground for setting aside a judgment valid and regular on its
face.[29]
In the present case, the 30 March 2004 decision and the 17 May
2004 resolution of the trial court had become final and executory upon the
lapse of the reglementary period to appeal.[30] Petitioners motion for
reconsideration of the 17 May 2004 resolution, which the trial court
received on 28 June 2004, was clearly filed out of time. Applying the
doctrine laid down in Tuason, the alleged negligence of counsel resulting in
petitioners loss of the right to appeal is not a ground for vacating the trial
courts judgments.
Further, petitioner cannot claim that she was denied due process.
While she may have lost her right to present evidence due to the supposed
negligence of her counsel, she cannot say she was denied her day in
court. Records show petitioner, through counsel, actively participated in the
proceedings below, filing motion after motion. Contrary to petitioners
allegation of negligence of her counsel, we have reason to believe the
negligence in pursuing the case was on petitioners end, as may be
gleaned from her counsels manifestation dated 3 May 2004:

Undersigned Counsel, who appeared for petitioner, in the nullity proceedings,

respectfully informs the Honorable Court that she has not heard from petitioner since
Holy Week. Attempts to call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond in an intelligent manner to
[31]
the Motion (Omnibus Motion) filed by respondent.

Clearly, despite her counsels efforts to reach her, petitioner showed

utter disinterest in the hearings on respondents omnibus motion seeking,
among others, custody of the children. The trial judge was left with no other
recourse but to proceed with the hearings and rule on the motion based on
the evidence presented by respondent. Petitioner cannot now come to this
Court crying denial of due process.
As for the applicability to petitioners motion to dismiss of Section 7 of
the Rule on the Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, petitioner is correct. Section 7 of
the Rule on the Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages provides:
SEC. 7. Motion to dismiss. No motion to dismiss the
petition shall be allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties; provided,
however, that any other ground that might warrant a
dismissal of the case may be raised as an affirmative
defense in an answer. (Emphasis supplied)
The clear intent of the provision is to allow the respondent to ventilate
all possible defenses in an answer, instead of a mere motion to dismiss, so
that judgment may be made on the merits. In construing a statute, the
purpose or object of the law is an important factor to be
considered.[32] Further, the letter of the law admits of no other interpretation
but that the provision applies only to a respondent, not a petitioner. Only a
respondent in a petition for the declaration of absolute nullity of void
marriage or the annulment of voidable marriage files an answer where any
ground that may warrant a dismissal may be raised as an affirmative
defense pursuant to the provision. The only logical conclusion is that
Section 7 of the Rule does not apply to a motion to dismiss filed by the
party who initiated the petition for the declaration of absolute nullity of void
marriage or the annulment of voidable marriage.
Since petitioner is not the respondent in the petition for the annulment
of the marriage, Section 7 of the Rule does not apply to the motion to
dismiss filed by her. Section 7 of the Rule not being applicable, petitioners

claim that it is unconstitutional for allegedly setting an obstacle to the

preservation of the family is without basis.
Section 1 of the Rule states that the Rules of Court applies
suppletorily to a petition for the declaration of absolute nullity of void
marriage or the annulment of voidable marriage. In this connection, Rule 17
of the Rules of Court allows dismissal of the action upon notice or upon
motion of the plaintiff, to wit:
Section 1. Dismissal upon notice by plaintiff. A
complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a
motion for summary judgment. Upon such notice being filed,
the court shall issue an order confirming the dismissal. x x x
Section 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon
such terms and conditions as the court deems proper. x x x (Emphasis supplied)

However, when petitioner filed the motion to dismiss on 4 November

2004, the 30 March 2004 decision and the 17 May 2004 resolution of the
trial court had long become final and executory upon the lapse of the 15day reglementary period without any timely appeal having been filed by
either party. The 30 March 2004 decision and the 17 May 2004 resolution
may no longer be disturbed on account of the belated motion to dismiss
filed by petitioner. The trial court was correct in denying petitioners motion
to dismiss. Nothing is more settled in law than that when a judgment
becomes final and executory, it becomes immutable and unalterable. The
same may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of fact or
law.[33] The reason is grounded on the fundamental considerations of public
policy and sound practice that, at the risk of occasional error, the
judgments or orders of courts must be final at some definite date fixed by
law. Once a judgment has become final and executory, the issues there
should be laid to rest.[34]
WHEREFORE, we DENY the petition for review. We AFFIRM the (i)
17 May 2004 Resolution amending the 30 March 2004 Decision and (ii)
the 15 February 2005 Resolution of the Regional Trial Court of Quezon
City, Branch 107, in Civil Case No. Q-01-45743.
Costs against petitioner.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

D. BRION
ASSOCIATE JUSTICE

MARIANO C. DEL CASTILLO

ASSOCIATE
JUSTICE

JUSTICE

ROBERTO A. ABAD
ASSOCIATE

JOSE P. PEREZ
ASSOCIATE
JUSTICE

ATTESTATION
I ATTEST THAT THE CONCLUSIONS IN THE ABOVE DECISION
HAD BEEN REACHED IN CONSULTATION BEFORE THE CASE WAS
ASSIGNED TO THE WRITER OF THE OPINION OF THE COURTS
DIVISION.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]

Under Rule 45 of the Rules of Court.

Records, pp. 261-269.
Id. at 235-251.
Id. at 499-505.
Id. at 141-147.
Id. at 124-129.
Id. at 482-490.
Id. at 393-403.
Id. at 11.
Id. at 12-13.
Id. at 124-128.
Id. at 141-147.
Id. at 427.
Id. at 319-326.
Id. at 393-403.
Id. at 414-416.
Id. at 418-423.
Id. at 482-490.
Id. at 499-505.
Rollo, pp. 246-248.
Records, pp. 235-251.
Id. at 141-147.
Id. at 124-129.
Id. at 261-269.
Id. at 499-505.
Id. at 482-490.
Id. at 393-403.
326 Phil. 169 (1996).
Id.
Perez v. Zulueta, 106 Phil. 264 (1959).
Records, p. 259.
Philippine Sugar Central Agency v. Collector of Customs, 51 Phil. 131 (1927).
Nual v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26.
Enriquez v. Court of Appeals, G.R. No. 83720, 4 October 1991, 202 SCRA 487.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
NORYN S. TAN,

A.M. No. MTJ-09-1729

Petitioner,

(Formerly OCA I.P.I. No. 07-1910-MTJ)

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
DE CASTRO, JJ.

JUDGE MARIA CLARITA

CASUGA-TABIN, Municipal Trial
Court
in
Cities,
Branch
Promulgated:
4, Baguio City,
Respondent.
January 20, 2009
x----------------------------------------------------------x

RESOLUTION
AUSTRIA-MARTINEZ, J.:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against
Judge Maria Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in
Cities (MTCC), Branch 4,Baguio City for denial of due process relative to Criminal
Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National Police
(PNP) Quezon City Police District (QCPD) served her a warrant of arrest
dated October 13, 2006, issued by theMTCC Baguio City, Branch 4, presided by
respondent, relative to Criminal Case No. 118628 for alleged violation of Batas
Pambansa Blg. 22. It was only then that she learned for the first time that a
criminal case was filed against her before the court. She was detained at the
Quezon City Hall Complex Police Office and had to post bail of P1,000.00 before

the Office of the Executive Judge of the Regional Trial Court (RTC) of Quezon
City for her temporary release. Upon verification, she learned that respondent
issued on August 8, 2006 an Order directing her to appear before the court
on October 10, 2006 for arraignment. It was sent by mail to PNP Quezon City for
service to her. However, she did not receive any copy of the Order and up to the
present has not seen the same; hence, she was not able to attend her
arraignment. She also found out that there was no proof of service of the Order or
any notice to her of the arraignment. This notwithstanding, respondent issued a
warrant for her arrest. Complainant alleges that she was deeply aggrieved and
embarrassed by the issuance of the warrant for her arrest despite the fact that she
was never notified of her arraignment. Complainant prayed that the appropriate
investigation be conducted as to the undue issuance of a warrant for her arrest.[1]
In her Comment[2] dated July 5, 2007, respondent answered: She issued
the warrant of arrest because when the case was called for appearance, the
complainant, as accused therein, failed to appear. Prior to the issuance of the
warrant of arrest, her staff sent by registered mail the court's Order dated August
8, 2006 addressed to complainant through the Chief of Police, PNP, 1104,
Quezon City directing complainant to appear on October 10, 2006 at 8:30 a.m.
for the arraignment and preliminary conference in Criminal Case No. 118628, as
proven by Registry Receipt No. 0310. It is true that the return on the court's Order
dated August 8, 2006 had not yet been made by the QC Police on or
before October 10, 2006. Nonetheless, she issued the warrant of arrest in good
faith and upon the following grounds: (a) under Sec. 3 of Rule 131[3] of the Rules
of Court, the court was entitled to presume that on October 10, 2006, after the
lapse of a little over two months, official duty had been regularly performed and a
letter duly directed and mailed had been received in the regular course of mail;
and (b) Sec. 12 of the 1983 Rule on Summary Procedure in Special Cases
provides that bail may be required where the accused does not reside in the place
where the violation of the law or ordinance was committed. The warrant of arrest
she issued was meant to implement this provision, which was not repealed by the
1991 Revised Rule on Summary Procedure, since complainant is a resident
of Quezon City and not of Baguio City. If her interpretation was erroneous, she
(respondent) believes that an administrative sanction for such error would be
harsh and unsympathetic. She has nothing personal against complainant and did
not want to embarrass or humiliate her. She issued the warrant in the honest
belief that her act was in compliance with the rules. She prays that the case
against her be dismissed and that a ruling on the interpretation of Secs. 10 & 12,
of the 1983 Rule on Summary Procedure in Special Cases, in relation to Sec. 16

of the 1991 Revised Rule on Summary Procedure be made for the guidance of
the bench and bar.[4]
The OCA, in its agenda report dated September 28, 2007, recommended
that the case be dismissed for lack of merit. It held: Prior to the filing of the
information, a preliminary investigation was conducted by the provincial
prosecutor resulting in the Resolution dated July 11, 2006 recommending the
filing of the case; it was incredulous for complainant to claim that she came to
learn for the first time of the filing of the criminal case when the warrant of arrest
was served on her; furthermore, there was already a complete service of notice
as contemplated in Sec. 10, Rule 13[5] of the Rules of Court; hence the
requirement of notice was fully satisfied by the service of the Order dated August
8, 2006 and the completion of the service thereof.[6]
Adopting the recommendation of the OCA, the Court on November 12,
2007 issued a Resolution dismissing the case for lack of merit.[7]
Complainant filed a Motion for Reconsideration dated January 8, 2008
alleging: The issue in this case was not whether complainant was aware of the
criminal complaint against her, but whether the issuance of a warrant of arrest
against her despite the absence of notice should be administratively dealt with;
complainant was never notified of the arraignment; thus, she was not able to
attend the same; respondent admitted in her Comment that no return had yet
been made on or before October 10, 2006, the date respondent ordered the
warrant to be issued; her explanation of good faith was therefore unjustifiable;
neither could respondent invoke the presumption of regularity of performance of
official duty, since the complainant did not actually receive any notice; respondent
in an Order dated March 14, 2007 admitted that since she did not usually wear
eyeglasses during hearings, she thought that the acknowledgment receipt at the
back of the Order referred to the copy sent to complainant; later scrutiny,
however, showed that it pertained to the one sent to the prosecutor's office;
Section 10, Rule 13 of the Rules of Court did not apply to the instant case; the
Order was addressed and sent to PNP Quezon City; assuming that the Order
was properly served on the PNP, it was not equivalent to a service on
complainant; there was no actual delivery of the Order to the complainant; hence,
there was no personal service; neither was it served by ordinary mail or by
registered mail; thus, the rule on completeness of service had not been satisfied;
complainant was not aware of and therefore did not attend the preliminary
investigation of her case; no proof can be shown that she was ever notified of the
said preliminary investigation, much less of the filing of the same.[8]

In a Resolution dated April 16, 2008, the Court required respondent to

Comment on complainant's Motion for Reconsideration.[9]
Complainant filed a Comment stating: Complainant's motion did not raise
any new issue or ground that would merit the reconsideration of the Court's
November 12, 2007 Resolution; complainant failed to rebut the presumption that
she was notified of the scheduled arraignment; what complainant propounded
was a mere self-serving denial that she never received the subpoena intended for
her; there was no explanation why she would be able to receive a warrant of
arrest; which was coursed in the same manner as the subpoena, in a little less
than a month, but allegedly to receive the subpoena in almost two months; if
complainant's assertion was to be believed, the effect would be to paralyze the
operation of courts in the provinces that had to inevitably rely on the police
resources of Metro Manila; arraignments could not proceed and trials could not go
on; it was reasonable to follow as a rule that once a pleading or any other official
document was received in the ordinary course of sending them, it must be
presumed that others of the same nature were also delivered to the named
addressees; to believe otherwise would be to delay justice for those residing
outside Metro Manila.[10]
The Court finds the Motion for Reconsideration to be impressed with merit.
Whenever a criminal case falls under the Summary Procedure, the
general rule is that the court shall not order the arrest of the accused, unless the
accused fails to appear whenever required.[11] This is clearly provided in Section
16 of the 1991 Revised Rule on Summary Procedure which states:
Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except
for failure to appear whenever required. Release of the person arrested shall either be in bail or
on recognizance by a responsible citizen acceptable to the court. (Emphasis supplied)

In this case, respondent claims that the issuance of a warrant for the arrest
of complainant was justified, since complainant failed to appear during the
arraignment in spite of an order requiring her to do so. Respondent admits,
however, that a copy of the Order dated August 8, 2006, was sent to complainant
through the Chief of Police, PNP, 1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of
which is that official duty has been regularly performed, such presumption should
not be the sole basis of a magistrate in concluding that a person called to court

has failed to appear as required, which in turn justifies the issuance of a warrant
for her arrest, when such notice was not actually addressed to her residence but
to the police in her city. So basic and fundamental is a person's right to liberty that
it should not be taken lightly or brushed aside with the presumption that the police
through which the notice had been sent, actually served the same on complainant
whose address was not even specified.
Respondent further admitted in her Comment dated July 5, 2007 that
when she proceeded with the arraignment on October 10, 2006 as scheduled, no
return had yet been made by the Quezon City Police.[12] Nevertheless, she
issued the warrant of arrest, arguing that she did so on the presumption that
regular duty had been performed, and that the Order had been received in the
regular course of mail; and since Sec. 12 of the 1983 Rules on Summary
Procedure provides that bail may be required where the accused does not reside
in the place where the violation of the law or ordinance was committed, the
warrant of arrest she issued was justified since complainant is a resident of
Quezon City and not of Baguio City.
The Court disagrees.
Sections 10 and 12 of the 1983 Rules on Summary Procedure in Special
Cases (As Amended) state:
Sec. 10. Duty of the Court. - On the basis of the complaint of information and the affidavits
accompanying the same, the court shall make a preliminary determination whether to dismiss the
case outright for being patently without basis or merit, or to require further proceedings to be
taken. In the latter case, the court may set the case for immediate arraignment of an accused under
custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty, and in all
other cases, the court shall issue an order, accompanied by copies of all the affidavits submitted by
the complainant, directing the defendant(s) to appear and submit his counter-affidavit and those of
his witnesses at a specified date not later than ten (10) days from receipt thereof.
Failure on the part of the defendant to appear whenever required, shall cause the
issuance of a warrant for his arrest if the court shall find that a probable cause exists after an
examination in writing and under oath or affirmation of the complainant and his witnesses.
(Emphasis supplied)
xxxx
Sec. 12. Bail not required; Exception. --- No bail shall be required except when a warrant of
arrest is issued in accordance with Section 10 hereon or where the accused (a) is a recidivist; (b) is
fugitive from justice; (c) is charged with physical injuries; (d) does not reside in the place where the
violation of the law or ordinance was committed, or (e) has no known residence.

Section 12 of the 1983 Rules on Summary Procedure was not reproduced

in the 1991 Revised Rules on Summary Procedure, while Section 10 was revised
and portions thereof reproduced in Sections 12[13] and 16 of the 1991 Rules on

Summary Procedure. Granting, arguendo, that Sections 10 and 12 of the 1983

Rules on Summary Procedure in Special Cases were not repealed by the 1991
Revised Rules, still it does not justify the warrant of arrest issued in this
case. Section 12 talks of instances when bails are required, one of which is when
the accused does not reside in the place where the violation of the law or
ordinance was committed. It does not state, however, that a warrant of arrest
shall immediately issue even without actual notice to the accused. Respondent's
interpretation ascribes to the rules those which were not expressly stated therein
and unduly expands their meaning.
The Court also notes that in an Order dated March 14, 2007, a copy of
which was attached by complainant to her Motion for Reconsideration,
respondent admitted that:
As a point of clarification, during the hearing on October 10, 2006, when the case was
called and the accused failed to appear, the Court verified from the staff if the Accused was
notified to which said staff answered in the affirmative, showing to the Court a copy of the Order
dated August 8, 2006, setting this case for Appearance of the Accused on October 10, 2006. At the
back of the Order was an attached Acknowledgment Receipt. A quick glance of the said
receipt, and without eyeglasses of the Presiding Judge, as she does not usually wear one
during Court sessions, made this Court believed that indeed, that was the Acknowledgment
Receipt proving that the Accused was served with a copy of the said Order.
The attention of the Court was called upon receipt of the Accused's Motion for
Clarification and a closer look on the Acknowledgment Receipt shows that the same was for
[14]

the City Prosecutor's Office. x x x

(Emphasis supplied)

From this, it can be inferred that respondent issued the warrant of arrest on
the mistaken belief that complainant was actually notified of the arraignment. A
closer scrutiny of the records however showed that the Acknowledgment Receipt
pertained to the copy of the City Prosecutor's Office and not that of complainant's.
Whatever the real reasons behind respondent's issuance of complainant's
warrant of arrest -- whether from the mistaken belief that complainant was actually
notified, or the presumption that the police had served a copy of the order on
complainant or that the rules allow immediate issuance of warrants of arrests
whenever the accused does not reside in the locality where the crime was
committed -- the fact is, respondent failed to uphold the rules, for which she
should be held administratively liable.
The Court has held that a judge commits grave abuse of authority when
she hastily issues a warrant of arrest against the accused in violation of the
summary procedure rule that the accused should first be notified of the charges

against him and given the opportunity to file his counter-affidavits and
countervailing evidence.[15]
While judges may not always be subjected to disciplinary action for every
erroneous order or decision they render, that relative immunity is not a license to
be negligent, abusive and arbitrary in their prerogatives. If judges wantonly
misuse the powers vested in them by law, there will not only be confusion in the
administration of justice but also oppressive disregard of the basic requirements of
due process.[16] While there appears to be no malicious intent on the part of
respondent, such lack of intent, however, cannot completely free her from
liability.[17] When the law is sufficiently basic, a judge owes it to her office to know
and simply apply it.[18]
Considering that this is respondent's first administrative infraction in her
more than 8 years of service in the judiciary,[19] which serves to mitigate her
liability, the Court holds the imposition of a fine in the amount of P10,000.00 to be
proper in this case.[20]
WHEREFORE, Judge Maria Clarita Casuga-Tabin, Municipal Trial Court
in Cities, Branch 4, Baguio City is hereby found guilty of abuse of authority for
which she is fined in the sum of P10,000.00.
SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

[1]
[2]

[3]

[4]
[5]

[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]

[14]
[15]
[16]
[17]
[18]
[19]

[20]

In lieu of Justice Ruben T. Reyes, per Special Order No. 546 dated January 5, 2009.
Rollo, pp. 3-5.
The Office of the Court Administrator (OCA) referred the Complaint to respondent for her Comment in a
1st Indorsement dated April 20, 2007, id. at 28.
Sec. 3. Disputable presumptions. --- The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxxx
(m) That official duty has been regularly performed; x x x
Rollo, pp. 28-30.
Section 10. Completeness of service. --- Personal service is complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the
postmaster, whichever date is earlier.
Rollo, pp. 1-2.
Rollo, p. 34.
Id. at 38-43.
Id. at 47.
Rollo, pp. 48-49.
Guillen v. Nicolas, 360 Phil. 1, 12 (1998).
Rollo, p. 28.
Sec. 12. Duty of court. --(a) If commenced by complaint. --- On the basis of the complaint and the affidavits and other evidence accompanying
the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the
accused if in custody.
(b) If commenced by information. --- When the case is commenced by information, or is not dismissed pursuant an
order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the
accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving
copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution
may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.
Rollo, p. 46.
Daiz v. Adason, 353 Phil. 1, 7 (1998).
Id. at 7-8.
Aguilar v. Dalanao, 388 Phil. 717, 724 (2000).
Martinez Sr. v. Paguio, 442 Phil. 517, 526 (2002); Aguilar v. Dalanao, supra note 17.
Per verification with the Records Division, OCA-OAS; respondent served as Researcher/Branch Clerk of Court at the
RTC Baguio City from June 5, 1986 up to September 3, 1990; she served at the Public Attorney's Office from 1990 to
2004; and took her oath in her present post on February 9, 2004.
See Daiz v. Adason, supra note 15, at 9.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 139465

January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and
MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide
whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a
treaty. The bugle sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual
concern for the suppression of crime both in the state where it was committed and the state where
the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the
intention of the Philippines to enter into similar treaties with other interested countries; and the need
for rules to guide the executive department and the courts in the proper implementation of said
treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government
of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government
of the Republic of the Philippines and the Government of the United States of America" (hereinafter
referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed
its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic
Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents
accompanying an extradition request upon certification by the principal diplomatic or consular officer
of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S.
Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez
to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of
arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents
for said extradition. Based on the papers submitted, private respondent appears to be charged in the
United States with violation of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2]
counts; Maximum Penalty 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5
years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5
years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on
each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum
Penalty less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel
of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree
No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found that the "official English
translation of some documents in Spanish were not attached to the request and that there are some
other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through counsel,
wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition
request from the U.S. Government, as well as all documents and papers submitted therewith; and
that he be given ample time to comment on the request after he shall have received copies of the
requested papers. Private respondent also requested that the proceedings on the matter be held in
abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the
request of the United States Government, and after receiving a copy of the Diplomatic Note, a period
of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for
the following reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting
documents from the United States Government, pending evaluation by this Department of
the sufficiency of the extradition documents submitted in accordance with the provisions of
the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the
Philippines and the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary
investigation nor akin to preliminary investigation of criminal cases. We merely determine
whether the procedures and requirements under the relevant law and treaty have been
complied with by the Requesting Government. The constitutionally guaranteed rights of the
accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be extradited
will be furnished by the court with copies of the petition, request and extradition documents
and this Department will not pose any objection to a request for ample time to evaluate said
documents.
2. The formal request for extradition of the United States contains grand jury information and
documents obtained through grand jury process covered by strict secrecy rules under United
States law. The United States had to secure orders from the concerned District Courts
authorizing the United States to disclose certain grand jury information to Philippine
government and law enforcement personnel for the purpose of extradition of Mr. Jimenez.
Any further disclosure of the said information is not authorized by the United States District
Courts. In this particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject information. This

Department's denial of your request is consistent with Article 7 of the RP-US Extradition
Treaty which provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition
requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with an
extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we
are a party provides that "[E]very treaty in force is binding upon the parties to it and must be
performed by them in good faith". Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent the extradition documents,
to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to
restrain petitioner from considering the extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition of private respondent to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in
his own behalf, moved that he be given ample time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice,
the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their
agents and/or representatives to maintain the status quo by refraining from committing the
acts complained of; from conducting further proceedings in connection with the request of
the United States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any act directed to
the extradition of the petitioner to the United States, for a period of twenty (20) days from
service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed
upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the
morning. The respondents are, likewise, ordered to file their written comment and/or
opposition to the issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF,I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS
TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING
PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR
OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OFMANDAMUS IN
THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT,
GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES
UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND
ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person
or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from
enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case
No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the
Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed
their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us to
delineate the focal point raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those before us now), while a negative
resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999,
thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with

the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to
basic due process rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of the Philippine
Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a
breach, is there any conflict between private respondent's basic due process rights and the
provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein,
and of the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty
which was executed only on November 13, 1994, ushered into force the implementing provisions of
Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with the object of placing him
at the disposal of foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty imposed
on him under the penal or criminal law of the requesting state or government." The portions of the
Decree relevant to the instant case which involves a charged and not convicted individual, are
abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of
Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued
by the authority of the Requesting State having jurisdiction over the matter, or some other
instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to the
name and identity of the accused, his whereabouts in the Philippines, if known, the acts or
omissions complained of, and the time and place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the request;
and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the
requirements of this law and the relevant treaty or convention, he shall forward the request
together with the related documents to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given the task of evaluating
the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What
then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and
probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense
for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the prosecution or the
execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or
paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable
cause for his arrest and committal for trial if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority;
and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the
executive authority of the Requested State determines that the request is politically motivated, or
that the offense is a military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the same
to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to
take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then
file a written petition with the proper regional trial court of the province or city, with a prayer that the
court take the extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as
soon as practicable, issue an order summoning the prospective extraditee to appear and to answer
the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it
appears that the immediate arrest and temporary detention of the accused will best serve the ends
of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective
extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the

hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8
of the Decree provides that the attorney having charge of the case may, upon application by the
Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving
the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition
(Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final
and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the
required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based
on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RPUS Extradition Treaty. The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).
1w phi1.nt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents
itself: What is the nature of the role of the Department of Justice at the evaluation stage of the
extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to
file the extradition petition after the request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine
whether or not the request is politically motivated, or that the offense is a military offense which is
not punishable under non-military penal legislation.Ipso facto, as expressly provided in Paragraph
[1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the
extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to
abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition
request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or
less than 24 hours later, the Department of Justice received the request, apparently without the
Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the Department of Foreign
Affairs that his Department, in this regard, is merely acting as a post office, for which reason he
simply forwarded the request to the Department of Justice, indicates the magnitude of the error of
the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of
Justice took it upon itself to determine the completeness of the documents and to evaluate the same
to find out whether they comply with the requirements laid down in the Extradition Law and the RPUS Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of
Justice had no obligation to evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it
was also at this stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private
respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one abdicating
its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover,
has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the extradition request, it would not
allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign
Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a
well-founded judgment that the request and its annexed documents satisfy the requirements of law.

The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all
by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or
his undersecretary, in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It
is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an
exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a
technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly
deny the request if on its face and on the face of the supporting documents the crimes indicated are
not extraditable; and (c) to make a determination whether or not the request is politically motivated,
or that the offense is a military one which is not punishable under non-military penal legislation (tsn,
August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty).
Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision
supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining
or investigatory power, is one or the determinative powers of an administrative body which better
enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26).
This power allows the administrative body to inspect the records and premises, and investigate the
activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
information by means or accounts, records, reports, testimony of witnesses, production of
documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise judicial
functions and its power is limited to investigating the facts and making findings in respect thereto.
The Court laid down the test of determining whether an administrative body is exercising judicial
functions or merely investigatory functions: Adjudication signifies the exercise of power and authority
to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and circumstances
presented to it, and if the agency is not authorized to make a final pronouncement affecting the
parties, then there is an absence of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate
extradition documents. The body has no power to adjudicate in regard to the rights and obligations
of both the Requesting State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the
basis of an extradition petition. Such finding is thus merely initial and not final. The body has no
power to determine whether or not the extradition should be effected. That is the role of the court.
The body's power is limited to an initial finding of whether or not the extradition petition can be filed
in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee
pending the submission of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree
No. 1069 provides for a shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the

provisions only mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9,
RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from the Requested State. Second, the
temporary arrest of the prospective extraditee during the pendency of the extradition petition in court
(Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself,
this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation
process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to
make available to a respondent in an administrative case or investigation certain constitutional rights
that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice
Mendoza during the oral arguments, there are rights formerly available only at the trial stage that
had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right
against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon
vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against selfincrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who is charged with
immorality, which could result in his loss of the privilege to practice medicine if found guilty. The
Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the
revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of
property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of property, the administrative proceedings
are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the
earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American
jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the
proceeding is under a statute such that if an indictment is presented the forfeiture can be included in
the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it
must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be
considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for
the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or property
right. No less is this true, but even more so in the case before us, involving as it does the possible
deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed
second only to life itself and enjoys precedence over property, for while forfeited property can be
returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition
to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this
sense, the evaluation procedure is akin to a preliminary investigation since both procedures may
have the same result the arrest and imprisonment of the respondent or the person charged.
Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent, can possibly lead to his arrest, and to the
deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had
nothing to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110
U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with
treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord common
due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective
Supreme Courts have expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient character which make
them capable of meeting every modern problem, and their having been designed from earliest time
to the present to meet the exigencies of an undefined and expanding future. The requirements of
due process are interpreted in both the United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a
legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they
arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the
sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of
Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the
very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property,
and procedural due process which consists of the two basic rights of notice and hearing, as well as
the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993
Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not
only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of
these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the right to appear therein and present their
side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p.
64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule
112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the
right to submit counter-affidavits and other supporting documents within ten days from receipt
thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by
the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg.
337), the padlocking of filthy restaurants or theaters showing obscene movies or like

establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not
precluded from enjoying the right to notice and hearing at a later time without prejudice to the
person affected, such as the summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not
been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage
of the extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition which is based on
the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are
given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly
as possible of persons for trial to the state in which they have been charged with crime (31A Am
Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the
demand must be in proper form, and all the elements or jurisdictional facts essential to the
extradition must appear on the face of the papers, such as the allegation that the person demanded
was in the demanding state at the time the offense charged was committed, and that the person
demanded is charged with the commission of the crime or that prosecution has been begun in the
demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents
are then filed with the governor of the asylum state, and must contain such papers and documents
prescribed by statute, which essentially include a copy of the instrument charging the person
demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory since said papers
are necessary in order to confer jurisdiction on the government of the asylum state to effect
extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and other instruments
accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right mandatory on
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx
parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the
U.S. extradition procedures and principles, which are basically governed by a combination of treaties
(with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to
wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent
cases, requests for the provincial arrest of an individual may be made directly by the
Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for extradition is transmitted subsequently
through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect, that
under Article 17 thereof the parties provide reciprocal legal representation in extradition
proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof,
and that the documents have been authenticated in accordance with the federal statute that
ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a
hearing to consider the evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the
foreign country. The court must also determine that (a) it has jurisdiction over the defendant
and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for
which the applicable treaty permits extradition; and (c) there is probable cause to believe that
the defendant is the person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing treaty in
the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of
American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial of
the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it incorporates
its determinations in factual findings and conclusions of law and certifies the person's
extraditability. The court then forwards this certification of extraditability to the Department of
State for disposition by the Secretary of State. The ultimate decision whether to surrender an
individual rests with the Secretary of State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the motives of
the requesting government in seeking his extradition. However, a person facing extradition
may present whatever information he deems relevant to the Secretary of State, who makes
the final determination whether to surrender an individual to the foreign government
concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends with
one entity the Department of State which has the power to evaluate the request and the
extradition documents in the beginning, and, in the person of the Secretary of State, the power to act
or not to act on the court's determination of extraditability. In the Philippine setting, it is the
Department of Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the
Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the
Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the
Department of Justice which has taken over the task of evaluating the request as well as thereafter,
if so warranted, preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person
sought to be extradited be given due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a
proper state interest worthy of cognizance in constitutional adjudication. But the Constitution
recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of

Rights in general, and the Due Process Clause, in particular, that they were designed to
protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency
and efficacy that may characterize praiseworthy government officials no less, and perhaps
more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right
that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the
United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual
are concerned, the end does not justify the means. It is not enough that there be a valid
objective; it is also necessary that the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question
that not even the strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the nation who would deny him
that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always clash
in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic
principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no
extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he
may hold that federal and statutory requirements, which are significantly jurisdictional, have not been
met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state. Accordingly, if after a
careful examination of the extradition documents the Secretary of Foreign Affairs finds that the
request fails to meet the requirements of the law and the treaty, he shall not forward the request to
the Department of Justice for the filing of the extradition petition since non-compliance with the
aforesaid requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S.
Government of certain problems in the extradition papers (such as those that are in Spanish and
without the official English translation, and those that are not properly authenticated). In fact,
petitioner even admits that consultation meetings are still supposed to take place between the
lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and
prompt action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On

one hand there is yet no extraditee, but ironically on the other, it results in an administrative if
adverse to the person involved, may cause his immediate incarceration. The grant of the request
shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional
arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus
blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with
and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7
of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of access
to official records documents. The general right guaranteed by said provision is the right to
information on matters of public concern. In its implementation, the right of access to official records
is likewise conferred. These cognate or related rights are "subject to limitations as may be provided
by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the
premise that ultimately it is an informed and critical public opinion which alone can protect the values
of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999
do not fall under the guarantee of the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other hand, private respondent argues that
the distinction between matters vested with public interest and matters which are of purely private
interest only becomes material when a third person, who is not directly affected by the matters
requested, invokes the right to information. However, if the person invoking the right is the one
directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a
public officer in the conduct of the governmental process is a matter of public concern (Bernas, The
1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a
broad spectrum of subjects which the public may want to know, either because these directly affect
their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil
Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any
citizen has "standing".
When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes
the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to
information on matters of public concern. As to an accused in a criminal proceeding, he invokes
Section 14, particularly the right to be informed of the nature and cause of the accusation against
him.
The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337).
Such information may be contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action
from the U.S. Government. No official action from our country has yet been taken. Moreover, the
papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if
a third party invokes this constitutional provision, stating that the extradition papers are matters of
public concern since they may result in the extradition of a Filipino, we are afraid that the balance
must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of
the government. During the evaluation procedure, no official governmental action of our own
government has as yet been done; hence the invocation of the right is premature. Later, and in
contrast, records of the extradition hearing would already fall under matters of public concern,
because our government by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would
private respondent's entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RPExtradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the
treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice
and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of
our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution
which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land no further legislative
action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize
them, so as to give effect to both since it is to be presumed that municipal law was enacted with
proper regard for the generally accepted principles of international law in observance of the
observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine
Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law, jurisprudence dictates
that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155
[1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the
reason that such courts are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of
the law of the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty
may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest
law of the land, such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition
proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and

during the judicial determination of the propriety of extradition, the rights of notice and hearing are
clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these
rights. Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the
basic twin due process rights of notice and hearing will not go against the treaty or the implementing
law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee.
Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in
interstate extradition proceedings as explained above, the prospective extraditee may even request
for copies of the extradition documents from the governor of the asylum state, and if he does, his
right to be supplied the same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the
Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by
petitioner's revelation that everything it refuses to make available at this stage would be obtainable
during trial. The Department of Justice states that the U.S. District Court concerned has authorized
the disclosure of certain grand jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two
basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability, does this imply that for
a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article
III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's
theory would also infer that bail is not available during the arrest of the prospective extraditee when
the extradition petition has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll
persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs.
NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs.
NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner
by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA
31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the

enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections
to the Requested State's non-performance of its commitments under the Extradition Treaty are
insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners
of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971
(Providing Legal Assistance for Members of the Integrated National Police who may be charged for
Service-Connected Offenses and Improving the Disciplinary System in the Integrated National
Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree
No. 1707, although summary dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of
Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is by
furnishing him with a copy of the charges against him. This is a basic procedural requirement
that a statute cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the employee charged
with some misfeasance or malfeasance must have a reasonable opportunity to present his
side of the matter, that is to say, his defenses against the charges levelled against him and
to present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process
rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible banishment to
a foreign land. The convergence of petitioner's favorable action on the extradition request and the
deprivation of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice
outside legality," may be availed of only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs.
Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even
call for "justice outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true
to the organic law of the land if we choose strict construction over guarantees against the deprivation
of liberty. That would not be in keeping with the principles of democracy on which our Constitution is
premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and
wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack
of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which to file his comment with

supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.
SO ORDERED.
Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private respondent can validly
ask for copies of pertinent documents while the application for extradition against him is still
undergoing process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents conformably with
the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free
access to information of public concern is circumscribed only by the fact that the desired information
is not among the species exempted by law from the operation of the constitutional guaranty and that
the exercise of the right conforms with such reasonable conditions as may be prescribed by law.
There is no hornbook rule to determine whether or not an information is of public concern. The term
"public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the
public may want to know either because the subject thereof can affect their lives or simply because it
arouses concern.2
I am not convinced that there is something so viciously wrong with, as to deny, the request of private
respondent to be furnished with copies of the extradition documents.
I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he may
wish to proffer in an effort to clear himself. This right is two-pronged substantive and procedural
due process founded, in the first instance, on Constitutional or statutory provisions, and in the
second instance, on accepted rules of procedure.3Substantive due process looks into the extrinsic
and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and
property. Procedural due process the more litigated of the two focuses on the rules that are
established in order to ensure meaningful adjudication in the enforcement and implementation of the
law. Like "public concern," the term due process does not admit of any restrictive definition. Justice
Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history,
reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of
our own Constitution, it would seem, have deliberately intended, to make it malleable to the everchanging milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling
for its application that makes it appropriate to accept an enlarged concept of the term as and when
there is a possibility that the right of an individual to life, liberty and property might be
diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in

any proceeding conducted by or under the auspices of the State, his right to due process of law,
when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition
Treaty between the Government of the Republic of the Philippines and the Government of the United
States of America provides that in case of urgency, a Contracting Party may request the provisional
arrest of the person prior to the presentation of the request for extradition. I see implicit in this
provision that even after the request for extradition is made and before a petition for extradition is
filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the
Executive on the request for extradition by the foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the extraditee
to be furnished, upon request, with a copy of the relevant documents and to file his comment
thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.
I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil
Case No. 99-94684. The TRO directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding Petition with
the Regional Trial Court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty days from the service on respondents
of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented and litigated here is
solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the
case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act,
ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being
challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10,
1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has
become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it should be dismissed for
lack of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a
foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the
Department of Justice as the request for extradition is being evaluated, or whether due process
rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and
(b) whether or not private respondent has a right of access to extradition documents under Section
7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the extradition
treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he
argues that the documents sought to be furnished to private respondent only involve private
concerns, and not matters of public concern to which the people have a constitutional right to
access.
While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited. A person ordered extradited is arrested,
forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of
abode, to privacy, liberty and pursuit of happiness are taken away from him a fate as harsh and
cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the
evidence against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does
either prohibit it. The right to due process is a universal basic right which is deemed written into our
laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the innocent
against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition request and
its accompanying documents by the Department of Justice cannot be characterized as a mere "exparte technical assessment of the sufficiency" thereof. The function and responsibilities of the
Department of Justice in evaluating the extradition papers involve the exercise of judgment. They
involve a determination whether the request for extradition conforms fully to the requirements of the
extradition treaty and whether the offense is extraditable. These include, among others, whether the
offense for which extradition is requested is a political or military offense (Article 3); whether the
documents and other informations required under Article 7(2) have been provided (Article 7); and
whether the extraditable offense is punishable under the laws of both contracting parties by
deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a
correct judgment, the parties involved are entitled to be heard if the requirements of due process and
equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of
one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The respondent has
a right of access to all of the evidence. He has the right to submit controverting evidence. The
prosecuting official who conducts the preliminary investigation is required to be neutral, objective,
and impartial in resolving the issue of probable cause. I see no reason why the same rights may not
be accorded a person sought to be extradited at the stage where the Department of Justice
evaluates whether a petition for extradition would be filed before a regional trial court. If denied such
rights, not only denial of due process rights but of equal protection may be raised.
It is suggested that after a petition for extradition is filed with a regional trial court, the person sought
to be extradited may exercise all due process rights. He may then have access to all the records on
the basis of which the request for extradition has been made. He may controvert that evidence and
raise all defenses he may consider appropriate. That, it is urged, meets the due process
requirement.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to
notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when

the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere
filing of a petition for extradition causes immediate impairment of the liberty of the person sought to
be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by
the regional trial court. He would be compelled to face an open and public trial. He will be
constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye
would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty
of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process
rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.
The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty obligations to the government of another
state. This is so although we recognize treaties as a source of binding obligations under generally
accepted principles of international law incorporated in our Constitution as part of the law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on
the specific issue before us, the Court in the exercise of its judicial power to find and state what
the law is has this rare opportunity of setting a precedent that enhances respect for human rights
and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities follow
two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state
Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents
as well as the request for extradition; and (2) the international practice where the Executive
department need not initially grant notice and hearing at all. Rules of reciprocity and comity,
however, should not bar us from applying internationally now what appears the more reasonable and
humane procedure, that is, the interstate practice among Americans themselves. For in this case the
American people should be among the most interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of documents, and
the opportunity to protect himself at the earliest time against probable peril) does not, in my view,
violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in
interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy
and the inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously
pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled
to our full protection against the hazards of extradition (or deportation, similarly) from the very start.
More so because, looking at the facts adduced at the hearing and on the record of this case, the
charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political
nature or motivation such as the ones involving alleged financial contributions to a major American
political party. If so, long established is the principle that extradition could not be utilized for political
offenses or politically motivated charges.
There may, of course, be other charges against private respondent in the USA. But then they are, in
my view, already tainted there with political color due to the highly charged partisan campaign
atmosphere now prevailing. That private respondent's cases will be exploited as political fodder

there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the
matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about
constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right
to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the
correct balance between overwhelming Government power and the protection of individual rights
where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why there
should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in
any meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about,
should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before
he may be informed of what the contracting states in an extradition treaty have against him. There is
no question that everything which respondent Jimenez now requests will be given to him during trial.
Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported
from his own country.
I see no ill effects which would arise if the extradition request and supporting documents are shown
to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the procedures
and requirements under the relevant law and treaty have been complied with by the
Requesting Government. The constitutional rights of the accused in all criminal prosecutions
are, therefore, not available.
2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an extradition
request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition
"breach of an international obligation, rupture of states relations, forfeiture of confidence, national
embarrassment, and a plethora of other equally undesirable consequences" are more illusory
than real. Our country is not denying the extradition of a person who must be extradited. Not one
provision of the extradition treaty is violated. I cannot imagine the United States taking issue over
what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human
rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the
protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine
Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by
the sanctions of either criminal law or international treaty. At any stage where a still prospective
extraditee only seeks to know so that he can prepare and prove that he should not be extradited,
there should be no conflict over the extension to him of constitutional protections guaranteed to
aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7
enumerates the required documents and establishes the procedures under which the documents
shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of
Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at
this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation
stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is
interpreted as the exclusion of the right to a preliminary examination or preliminary investigation
provided by the laws of either one of the two states.
The right to be informed of charges which may lead to court proceedings and result in a deprivation
of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power
has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is
silent because at this stage, the preliminary procedure is still an internal matter. And when a law or
treaty is silent, it means a right or privilege may be granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States
Government requested the Philippine Government to prevent unauthorized disclosure of certain
information. On the other hand, petitioner declares that the United States has already secured
orders from concerned District Courts authorizing the disclosure of the same grand jury information
to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue is
whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they would
have so provided in the extradition treaty. A positive provision making certain rights unavailable
cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical constitutional provisions on
due process and basic rights should sustain such a myopic view in a situation where the grant of a
right would not result in any serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person indicated has
been established. Considering the penchant of Asians to adopt American names when in America,
the issue of whether or not the prospective extraditee truly is the person charged in the United
States becomes a valid question. It is not only identity of the person which is involved. The crimes
must also be unmistakably identified and their essential elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our laws or in
the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether
or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect
him from an open and extensively publicized accusation of crimes; to spare him the trouble,
expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails.

Even if the purpose is only to determine whether or not the respondent is a proper subject for
extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those
charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition
must be viewed objectively and impartially without any predisposition to granting it and, therefore,
hastening the extradition process.
In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It would
incur greater delays if these are discovered only during court trial. On the other hand, if, from
respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient
pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial.
An unnecessary trial with all its complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate
exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs.
Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious,
capricious and oppressive delays, its salutary objective being to assure that an innocent person may
be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this
case, his being extradited) determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent. They
also serve the interests of the State.
1w phi 1.nt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of
individual respondent override the concerns of petitioner. There should be no hurried or indifferent
effort to routinely comply with all requests for extradition. I understand that this is truer in the United
States than in other countries. Proposed extraditees are given every legal protection available from
the American justice system before they are extradited. We serve under a government of limited
powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of an
accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for an
alleged offense committed within that jurisdiction. The issues are of first impression and the majority
opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this
dissenting opinion.
Extradition is a well-defined concept and is more a problem in international law. It is the "process by
which persons charged with or convicted of crime against the law of a State and found in a foreign
State are returned by the latter to the former for trial or punishment. It applies to those who are
merely charged with an offense but have not been brought to trial; to those who have been tried and
convicted and have subsequently escaped from custody; and those who have been convicted in
absentia. It does not apply to persons merely suspected of having committed an offense but against
who no charge has been laid or to a person whose presence is desired as a witness or for obtaining
or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two
(2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt

to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false
statements or entries and thirty-three (33) counts of election contributions in the name of another.
There is an outstanding warrant of arrest against the private respondent issued by the US District
Court, Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative
commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4)
periods: "(1) ancient times to seventeenth century a period revealing almost exclusive concern for
political and religious offenders; (2) the eighteenth century and half of the nineteenth century a
period of treaty-making chiefly concerned with military offenders characterizing the condition of
Europe during that period; (3) from 1833 to 1948 a period of collective concern in suppressing
common criminality; and (4) post-1948 developments which ushered in a greater concern for
protecting the human rights of persons and revealed an awareness of the need to have international
due process of law regulate international relations."2
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during
these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and
Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted
due to pacts; at other times, due to plain good will.3 The classical commentators on international law
thus focused their early views on the nature of the duty to surrender an extraditee whether the
duty is legal or moral in character. Grotius and de Vattel led the school of thought that international
law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf
and Billot led the school of thought that the so-called duty was but an "imperfect obligation which
could become enforceable only by a contract or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law there is
no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme
Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have
imposed upon themselves the obligation of delivering up these fugitives from justice to the states
where their crimes were committed, for trial and punishment. This has been done generally by
treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one
country to deliver up such fugitives to another; and though such delivery was often made it was upon
the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international law. The
20th century saw the dramatic rise and fall of different types and hues of authoritarianism the
fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the
individual against the state. Indeed, some species of human rights have already been
accorded universal recognition.7 Today, the drive to internationalize rights of women and children is
also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led
to the re-examination of rightful place of the individual in international law. Given the harshest eye is
the moss-covered doctrine that international law deals only with States and that individuals are not
its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law
is a near cipher. Translated in extradition law, the view that once commanded a consensus is that
since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An
extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of
the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine
to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the
role and rights of the individual in state-concluded treaties and other international agreements. So it
was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of
international affairs and, thus, of the process of international accommodation, concerns the relations
between legal persons known as states. This is necessarily so. But it is no longer novel for the
particular interest of the human being to break through the mass of interstate relationship."11 The
clarion call to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were Yale Professor Myres
McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World
Public Order, they suggested that the object of the new world should be "to obtain in particular

situations and in the aggregate flow of situations the outcome of a higher degree of conformity with
the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all
societies comprising the world community."12 Needless to stress, all these prescient theses
accelerated the move to recognize certain rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the case at
bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of the litigation.
In our constitutional scheme, the making of a treaty belongs to the executive and legislative
departments of our government. Between these two departments, the executive has a greater say in
the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole
power to negotiate treaties and international agreements although to be effective, they must be
concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article
empowers the President to contract or guarantee foreign loans with the prior concurrence of the
Monetary Board. Section 16 of the same Article gives the President the power to appoint
ambassadors, other public ministers and consuls subject to confirmation by the Commission on
Appointments. In addition, the President has the power to deport undesirable aliens. The
concentration of these powers in the person of the President is not without a compelling
consideration. The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be entrusted to
that department of government which can act on the basis of the best available information and can
decide with decisiveness. Beyond debate, the President is the single most powerful official in our
land for Section 1 of Article VII provides that "the executive power shall be vested in the President of
the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in
the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . .
except to the extent reserved to the people by the provision on initiative and referendum," while
Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law." Thus, we can see that executive power is vested
in the President alone whereas legislative and judicial powers are shared and scattered. It is also the
President who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable consequences.
These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the extradition
documents against him and to comment thereon even while they are still at the evaluation stage by
the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what
constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy
answers and have resulted in discrete approaches the world over.15 On one end of the pole is the
more liberal European approach. The European Court of Human Rights embraces the view that an
extraditee is entitled to the benefit of all relevant provisions of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure
of the extradition has consequences adversely affecting the enjoyment of a convention right, it may,
assuming that the consequences are not too remote, attract the obligations of a Contracting State
under the relevant convention guarantee."16 At the other end of the pole is the more cautious
approach of the various Courts of Appeal in the United States. These courts have been more
conservative in light of the principle of separation of powers and their faith in the presumptive validity

of executive decisions. By and large, they adhere to the rule of non-inquiryunder which
the extraditing court refuses to examine the requesting country's criminal justice system or consider
allegations that the extraditee will be mistreated or denied a fair trial in that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US
Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls
for a harmonizationbetween said treaty and our Constitution. To achieve this desirable objective, the
Court should consider whether the constitutional rights invoked by the private respondent have truly
been violated and even assuming so,whether he will be denied fundamental fairness. It is only when
their violation will destroy the respondent's right to fundamental fairness that his constitutional claims
should be given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and facets
of the case,the private respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not
necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right.
Also, constitutional litigations do not always involve a clear cut choice between right and wrong.
Sometimes, they involve a difficult choice between right against right. In these situations, there is
need to balance the contending rights and primacy is given to the right that will serve the interest of
the nation at that particular time. In such instances, the less compelling right is subjected to soft
restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I
venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of
private respondent's rights to due process and to information is too slight to warrant the interposition
of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is,
thus, futile to determine what it is. What is certainis that it is not a criminal proceeding where there is
an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed
that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will
not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional
rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by
an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal
proceedings.18Even the rules of evidence are different in an extradition proceeding. Admission of
evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not
only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal
case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case."21 If more need be said, the nature of an extradition decision is different from a judicial
decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual
extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive.
Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be
granted if the executive authority of the Requested State determined that the request was politically
motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation." In the United States, the Secretary of State exercises this ultimate power and is
conceded considerable discretion. He balances the equities of the case and the demands of the
nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an
ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence
of the extraditee, the limited nature of the extradition proceeding, the availability of adequate
remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct
of foreign affairs have compelled courts to put a high threshold before considering claims of
individuals that enforcement of an extradition treaty will violate their constitutional rights.
Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential
standard that emphasizes international comity and the executive's experience in international
matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be
considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance the threat
to liberty of the private respondent to prop us its thesis that his constitutional rights to due process

and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands
in danger of provisional arrest, hence, the need for him to be immediately furnished copies of
documents accompanying the request for his extradition.Respondent's fear of provisional arrest is
not real. It is a self-imagined fear for the realities on the ground show that the United States
authorities have not manifested any desire to request for his arrest. On the contrary, they filed the
extradition request through the regular channel and, even with the pendency of the case at bar, they
have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be
sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under
Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069,
the general principle is enunciated that a request for provisional arrest must be made pending
receipt of the request for extradition. By filing the request for extradition, the US authorities have
implicitly decided not to move for respondent's provisional arrest. But more important, a request for
respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due
process before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or
judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal request for extradition and the
supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to
the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest of
the accused from the presiding judge of the Court of First Instance of the province or city
having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of
this Decree, the accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in cyrillic
letters in these two (2) related provisions. It is self-evident under these provisions that a request for
provisional arrest does not mean it will be granted ipso facto. The request must comply with certain
requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by
our executive authorities. The request can be denied if not based on a real exigency of if the
supporting documents are insufficient. The protection of the respondent against arbitrary provisional
arrest does not stop on the administrative level. For even if the Director of the National Bureau of
Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply
for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the
province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the
provisional arrest of the respondent. The judge has comply with Section 2, Article III of the
Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the . . . persons or things to be
seized." The message that leaps to the eye is that compliance with this requirements precludes any
arbitrary arrest.
In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US authorities
during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed
that this is not a case where the respondent will not be given an opportunity to know the basis of the
request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069
fixes the specific time when he will be given the papers constituting the basis for his extradition. The
time is when he is summoned by the extradition court and required to answer the petition for
extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. He may issue a warrant for the immediate arrest of the accused which
may be served anywhere within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice.
Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension.
This goes against the familiar learning that in balancing the clashing interests involved in extradition
treaty, national interest is more equal than the others. While lately, humanitarian considerations are
being factored in the equation, still the concept of extradition as a national act is the guiding idea.
Requesting and granting extradition remains a power and prerogative of the national government of
a State. The process still involves relations between international personalities.25 Needless to

state, a more deferential treatment should be given to national interest than to individual interest.
Our national interest in extraditing persons who have committed crimes in a foreign country are
succinctly expressed in the whereas clauses of P.D. No. 1069, viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of
international law as part of law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the development of new
technologies of death,and the speed and scale of improvement of communication are factors which
have virtually annihilated time and distance. They make more compelling the vindication of national
interest to insure that the punishment of criminals should not be frustrated by the frontiers of
territorial sovereignty. This overriding national interest must be upheld as against respondent's weak
constitutional claims which in no way amount to denial of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive that concluded
the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary
John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests
in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this
forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive
on the necessities of our foreign affairs and on its view of the requirements of international comity.
The deferential attitude is dictated by the robust reality that of the three great branches of our
government, it is the Executive that is most qualified to guide the ship of the state on the known and
unknown continents of foreign relations. It is also compelled by considerations of the principle
ofseparation of powers for the Constitution has clearly allocated the power to conduct our foreign
affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive
by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct
our foreign affairs. The majority should be cautions in involving this Court in the conduct of the
nation's foreign relations where the inviolable rule dictated by necessity is that the nation should
speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped
to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows
and silhouettes.
I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.
Two Staged in Extradition
There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage,
whereby the executive authority of the requested state ascertains whether the extradition request is
supported by the documents and information required under the Extradition Treaty; and (2) the
extradition hearing, whereby the petition for extradition is heard before a court of justice, which
determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to be
notified and to be heard at this early stage. However, even the ponencia admits that neither the RPUS Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine
government, upon receipt of the request for extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give him an opportunity to be heard prior to
the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the
judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider
the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the
governor must, upon demand, furnish the fugitive or his attorney copies of the request and its
accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar
statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether
the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of
the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense
and the procedural history of the case; provisions of the law describing the essential elements of the
offense charged and the punishment therefor; its prescriptive period; such evidence as would
provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the
warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that
these accompanying documents have been certified by the principal diplomatic or consular officer of
the Philippines in the United States, and that they are in English language or have English
translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically
motivated, and whether the offense charged is a military offense not punishable under non-military
penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper regional
trial court, with a prayer that the court take the extradition request under consideration.3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:
No person shall be deprived of life, liberty or property without due process of law.
He claims that this right arises immediately, because of the possibility that he may be provisionally
arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
xxx

xxx

xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional
arrest pending the submission of the extradition request and (2) his temporary arrest during the
pendency of the extradition petition in court.4 The second instance is not in issue here, because no
petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times,
and in enforcement does not depend solely on the discretion of the requested state. From the
wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and
(2) there is a corresponding request (3) which must be made prior to the presentation of the request
for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the United
States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the
Oral Argument that he had no intention of applying for the provisional arrest of private
respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional
arrest is not likely, as it should really come before the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to
the apprehension of private respondent. In other words, there is no actual danger that Jimenez will
be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be
trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no
substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear
him during the preliminary stage, which basically involves only the exercise of the ministerial power
of checking the sufficiency of the documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is
merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged.8 The
sufficiency of the evidence of criminality is to be determined based on the laws of the requested
state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the
court, in case an extradition petition will indeed be filed, to be heard on all issues including the
sufficiency of the documents supporting the extradition request.10
Private respondent insists that the United States may still request his provisional arrest at any time.
That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs
based on speculations, surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of
the justice secretary that no such measure will be undertaken, our local laws and rules of procedure
respecting the issuance of a warrant of arrest will govern, there being no specific provision under the
Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the
rights accorded by the Constitution and the laws to any person whose arrest is being sought.
1wphi 1.nt

The right of one state to demand from another the return of an alleged fugitive from justice and the
correlative duty to surrender the fugitive to the demanding country exist only when created by a
treaty between the two countries. International law does not require the voluntary surrender of a
fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does
exist, as between the Philippines and the United States, it must be presumed that the contracting
states perform their obligations under it with uberrimae fidei, treaty obligations being essentially
characterized internationally by comity and mutual respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon him.
And because of the moral injury caused, he should be given the opportunity at the earliest possible
time to stop his extradition. I believe that any moral injury suffered by private respondent had not
been caused by the mere processing of the extradition request. And it will not cease merely by

granting him the opportunity to be heard by the executive authority. The concrete charges that he
has allegedly committed certain offenses already exist. These charges have been filed in the United
States and are part of public and official records there. Assuming the existence of moral injury, the
only means by which he can restore his good reputation is to prove before the proper judicial
authorities in the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for his extradition are
insufficient.
Conclusion
In the context of the factual milieu of private respondent, there is really no threat of any deprivation
of his liberty at the present stage of the extradition process. Hence, the constitutional right to due
process particularly the right to be heard finds no application. To grant private respondent's
request for copies of the extradition documents and for an opportunity to comment thereon will
constitute "over-due process" and unnecessarily delay the proceedings.
WHEREFORE, I vote to grant the Petition.

Footnotes
VITUG, J., separate opinion;
1

Sec. 7. The right of the people to information of public concern shall be recognized. Access
to official records, and to documents, and papers a pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be provided by law.
2

Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170
SCRA 256.
3

Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193
SCRA 597.
4

Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review,
Vol. IX, 30 April 1995, p. 1.
5

Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion;

1

Annex "L," petition.

Petition, p. 4.

Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976).

Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion;

Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990).

International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).

The Practice of Extradition from Antiquity to Modern France and the United States: A Brief
History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).
4

They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and
Kent. SeeSheareer, Extradition in Internal Law, p. 24 (1971).
5

They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied,
Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.
6

119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

See Universal Declaration of Human Rights (1948), The International Covenant on

Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and
Political Rights (1966).
8

The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN General
Assembly in December 1979. As of November 1999, one hundred sixty seven (167) states
including the Philippines have ratified or acceded to it. See Statement of Angela King,
Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of
Women, Judicial Colloquium on the Application of International Human Rights Law at the
Domestic Level, Vienna, Austria, October 27, 1999.
9

Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition,

Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under International
Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991).
10

See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The
Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).
11

The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the
American Bar Association, St. Louis, Mo., September 6, 1949.
12

See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L.
Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in
American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).
13

Bassiouni, supra, p. 625.

14

US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).

15

Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol.
51, pp. 62-63, (Winter, 1993).
16

Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

17

Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International
Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991).
18

Sec. 9, P.D. No. 1069.

19

Ibid.

20

Sec. 2, Rule 133, Revised Rules of Court.

21

Sec. 10, P.D. No. 1069.

22

Referring to the Regional Trial Courts and the Court of Appeals whose decisions are
deemed final and executory. See Section 12, P.D. No. 1069.
23

Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.

24

Spencer, op cit., citing decided cases.

25

Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990).

26

Semmelman. op cit., p. 1206.

PANGANIBAN, J., dissenting opinion;

1

35 CJS 14(1) Extradition 410. See also ponencia, p. 25.

See ponencia, pp. 11-12.

Ibid., Section 5, pars. (1) & (2), PD 1069.

Ponencia, p. 18.

TSN, p. 76.

See also TSN, p. 30.

5 (2) & (3) in rel. to 10, PD 1069. See also last par., p. 13 of ponencia.

18 USCS 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d 109 Extradition 828.

18 USCS 3184, n 64 Criminal Procedure 458.

10

See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.

11

31A Am Jur 2d Extradition 14.

SYLLABI/SYNOPSIS

FIRST DIVISION

[G.R. No. 119712. January 29, 1999]

DEVELOPMENT BANK OF THE PHILIPPINES and ASSET

PRIVATIZATION TRUST, petitioners, vs. COURT OF APPEALS and
CONTINENTAL CEMENT CORPORATION, respondents.
DECISION
MARTINEZ, J.:

This petition for review on certiorari assails the decision[1] rendered by the Court of Appeals
dated March 28, 1995 in CA-G.R. CV No. 42596 affirming the decision of the Regional Trial
Court-Branch 9 of Malolos, Bulacan dated October 9, 1992 and adopting in toto the orders
rendered by the same trial court dated August 25 and December 14, 1992.
On November 18, 1985, the Development Bank of the Philippines (DBP), a government
owned and controlled corporation, filed with the Office of the Sheriff of Malolos an application
for extra-judicial foreclosure of real and personal properties situated at San Jose del Monte and
Norzagaray, Bulacan involving several real and/or chattel mortgages executed by Continental
Cement Corporation (CCC), a corporation organized and existing under Philipine laws, engaged
mainly in the manufacture of cement, in favor of DBP on August 20, 1968; September 4, 1968;
May 7, 1969; September 19, 1969; October 24, 1969 and November 13, 1969.
On December 11, 1985, Continental Cement filed a complaint with the Regional Trial Court
of Malolos, Bulacan. The suit principally sought to enjoin the then defendants DBP and the
Sheriff of Malolos, Bulacan from commencing the foreclosure proceedings on CCCs mortgages
which were executed in favor of DBP to secure various loans obtained by CCC. In addition,
CCC also prayed that a new term for its loan obligation be established, and that the court declare
the interest escalation clause contained in DBPs promissory notes as null and void.
A temporary restraining order (TRO) was issued and subsequently a Writ of Preliminary
Injunction was likewise issued on January 17, 1986, despite opposition thereto by DBP.
Sometime in December 1986, Proclamation No. 50[2] was promulgated by then President
Corazon C. Aquino pursuant to Administrative Order No. 14. The proclamation established the
privatization program of the National Government and created the Committee on Privatization
and herein petitioner ASSET PRIVATIZATION TRUST (APT) as the privatization arm for the
government.
Several non-performing assets of the government financial institutions, including DBP, were
transferred to the National Government. The transfer was implemented through a Deed of
Transfer executed on February 27, 1987 between DBP and the National Government, which in
turn, designated petitioner APT to act as its trustee over the assets. Among the non-performing
assets identified and transferred to the APT was the account of CCC. A Trust Agreement was
thereafter executed between the National Government and APT, wherein the latter was to take
title to and possession of liabilities and non-performing assets.
On September 18, 1987, DBP filed a motion to dismiss contending (1) that the case has
become moot and academic because CCC could no longer secure reliefs from DBP as a result of
the transfer of DBPs claim against CCC to APT; and (2) that the court lost jurisdiction over the

subject matter considering that Section 31 of Proc. No. 50 prohibits the issuance of any
restraining order or injunction against APT in connection with the acquisition, sale, or
disposition of assets transferred to it. However, the motion of DBP was denied by the trial court
on January 27, 1988, and APT was eventually allowed to join the defendant DBP pursuant to
Proclamation No. 50, as amended.
In July 1989, the accounting firm of J. C. Laya[3] was designated by the lower court as
Commissioner to resolve the main issue in the case, that is, the determination of the actual
arrearages of respondent CCC to petitioner APT and DBP arising from loan accommodations
obtained by CCC from DBP.
To aid the Commissioner and to expedite his task of determining the actual indebtedness of
CCC, both CCC and DBP provided the representatives of the Commissioner with the pertinent
data and documents which were within their custody and possession. Among the documents
provided was a copy of the Memorandum of Agreement[4] executed between CCC and DBP
which pegged CCCs total indebtedness to DBP at P133,717,286.95 as of August 31, 1979.
The Commissioner was unable to accomplish his assigned task within the period set by the
court. He was initially given an extension of sixty (60) days. This proved to be insufficient thus
he was granted another forty-five (45) days from December 18, 1989.
Despite several extensions given to the Commissioner to complete his report, he failed to do
so. This prompted the trial court to issue an Order dated April 23, 1990 directing Atty. Jose
Leynes[5] to explain why he should not be cited for contempt for his unexplained omission to
perform and accomplish his duties as the court appointed Commissioner. This was followed by
another Order dated July 2, 1990 citing Atty. Leynes in contempt of court and ordered his
imprisonment for his non-compliance with the April 23, 1990 order.
To avoid the consequences of the contempt order, Atty. Leynes submitted a draft report on
July 11, 1990 entitled Summary of Initial Findings. The contempt order was subsequently
lifted by the trial court on August 20, 1990.
After several months of work had passed, the Commissioner, this time known as Laya
Manabat Salgado & Co., submitted to the lower court its report entitled Commissioners
Report on Loan Proceeds and Payments dated January 11, 1991. The findings of the
Commissioner as cited by the Court of Appeals in its decision were as follows:

It bears emphasis that the report is confined to a determination of CCCs

indebtedness to DBP in relation only to four (4) straight peso loans, namely, a
12% ten-year loan of P3,867,291 signed on August 20, 1968; a 10% ten-year loan
of P7,784,000 signed on September 19, 1969; a 10% ten-year loan signed on October
23, 1969; and a P5.5. Million loan not covered by any promissory note but released to
the extent of P1.0 Million in March 1972, and two (2) guaranteed foreign exchange
loans consisting of US$2,000,000 contracted on September 4, 1968 by CCC but
guaranteed by DBP in favor of Somex Ltd. and DM11,233,115 (German Deutsche
Marks) in favor of consortium of West German Manufacturers headed by KlocknerHumboldt-Deutz, A.G. dated May 9, 1969 (Report, p. 3). The Report excludes the
implications of, firstly, an industrial fund loan extended by DBP for CCCs
acquisition of coal conversion equipment appearing in DBPs books of accounts
as US$ 2,558,347 and, secondly, DBPs advances for insurance, management fees
and miscellaneous charges in the total amount of P4,436,807 (Report, pp. 8-9,
pars. 4.8, 4.9). x x x[6]

As a result of the report, the parties filed their respective comments and objections
thereto. During the trial, former Central Bank Governor Jaime C. Laya and a representative of
the Commissioner were called upon to testify. The parties also had the opportunity to crossexamine the witnesses on matters touched upon in the report as well as those disregarded by the
Commissioner in its report.
After having cross-examined the representative of the Commissioner, the parties were then
allowed to submit their respective Position Papers. Contained in their respective position papers
was their own computation of the outstanding liabilities of CCC. CCCs computation of its
exact indebtedness to DBP as of December 1990, covering the straight peso loans and foreign
guarantees stood atP43,601,192.73. The Commissioner reported that the indebtedness amounted
to P61,698,849.00 while DBP and APT computed CCCs total indebtedness in the sum
of P2,656,573,716.11.[7]
On July 23, 1992, a hearing was scheduled for the sole purpose of examining three (3) of
CCCs witnesses, namely, Gregorio Lim, Urbano Cruz and Jessica Alonzo. The crossexamination was to be conducted by APT as DBP had previously conducted its own crossexamination. The counsel for CCC failed to appear as he was allegedly ill. On that same date,
the court issued an order resetting the cross-examination for CCCs witnesses on August 24, 25
and 26, 1992. Again, the counsel for APT was not able to attend due to an alleged serious illness
(Dengue Hemorrhagic Fever). Also absent during the hearing was DBPs counsel and
DBP/APTs lone witness, Mr. Jaime V. Cruz.
On August 25, 1992, the trial court issued an order which considered the case submitted for
decision. The final paragraph of the order reads as follows:

In the light of the foregoing developments, and conformably with the agreement
entered into much earlier by the contending parties to the effect that after the affiants
to the position papers shall have been cross-examined, the parties shall dispense with
the presentation of further evidence, the case at bar is considered henceforth submitted
for adjudication on the merits.[8]
It is claimed by petitioner APT that when the above-mentioned order was issued, APT did
not yet have the opportunity to cross-examine the affiants of respondent CCC; nor did it have the
chance to present any of their affiants to support their allegations as contained in their Joint
Position Papers.
On September 18, 1992, APT filed a Motion for Reconsideration. In an order dated
October 13, 1992, the trial court declared that such motion became moot and academic by reason
of the decision rendered on October 5, 1992.
On that earlier date, the lower court rendered the assailed decision, the dispositive portion of
which is as follows:

WHEREFORE, premises considered, judgment is hereby rendered:

1. fixing the total indebtedness of plaintiff Continental Cement Corporation in favor of
defendant Development Bank of the Philippines on the straight peso loans and foreign
guarantees at P61,498,849.00 as of December 31, 1990;
2. fixing the indebtedness of plaintiff Continental Cement Corporation in favor of defendant
Development Bank of the Philippines on the coal conversion loan at US$977,000.00,
or P7,347,890.00 which is its equivalent in pesos at the official rate of exchange prevailing
in August 1979;

3. ordering the plaintiff to pay unto either of the defendants DBP or APT, within six (6) months
from the finality of this judgment, the aforementioned amount of P61,498,849.00 with
interest thereon at 10% per annum from January 1, 1991 until the same shall have been fully
paid and the aforementioned amount of US$997,000.00/P7,347,890.00 without interest
thereon;
4. declaring premature and without legal basis the application for extrajudicial foreclosure
(Annex A of the Complaint) filed on November 18, 1985 by defendant Development Bank
of the Philippines with the office of the defendant Sheriff of Malolos, Bulacan;
5. making permanent the writ of preliminary injunction issued by this Court on January 17,
1986 in the case at bar enjoining proceedings on the aforementioned application for
extrajudicial foreclosure, without prejudice to such rights (including the institution of
eventual foreclosure proceedings) as the defendants may opt to pursue against the plaintiff in
the event that the directive specified in the preceding paragraph hereof shall not have been
complied with; and
6. dismissing the plaintiffs claim for unspecified attorneys fees and expenses of litigation.

No pronouncement as to costs.
SO ORDERED.[9]
After having learned of the decision of the trial court, APT and DBP filed their respective
Omnibus Motions. APT, in its Omnibus Motion dated October 27, 1992, prayed for the issuance
of the following orders by the trial court:
1) vacating and nullifying its Decision dated October 5, 1992;
2) granting APT an opportunity to cross-examine plaintiffs witness;
3) allowing DBP and APT to present their witnesses and evidence;
4) after trial, requiring the parties to submit their respective Memoranda.[10]

The trial court, on December 14, 1992, issued an Order denying the separate Omnibus
Motions of APT and DBP. Both APT and DBP appealed the trial courts decision dated October
5, 1992 and orders dated August 25, 1992 and December 14, 1992.
On June 7, 1993, APT and DBP filed with the Court of Appeals a petition for certiorari and
prohibition with prayer for an ex-parte issuance of a restraining order and a writ of preliminary
injunction docketed as CA-G.R. SP No. 32853. However, on January 31, 1994, the Court of
Appeals dismissed the petition for lack of merit.
Thus, on March 28, 1995, the Court of Appeals, in CA-G.R. CV No. 42596 rendered the
assailed decision, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered AFFIRMING the

Decision dated October 5, 1992 and the orders dated August 25 and December 14,
1992 in toto. The order dated January 22, 1993 is hereby annulled and set aside
insofar as it directs the partial release of collaterals by defendants-appellants DBP and
APT.[11]
In the instant Petition for Review, APT assigns the following errors committed by the
appellate court:
I

THE COURT OF APPEALS IN AFFIRMING THE LOWER COURTS DECISION,

DISREGARDED THE PRINCIPLES EMBODIED IN THE DUE PROCESS
CLAUSE OF THE CONSTITUTION, THUS:
A

THE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER HAS

WAIVED ITS RIGHT TO CROSS-EXAMINE RESPONDENTS WITNESS
II

THE COURT OF APPEALS ERRED WHEN IT AFFIRMED THE TRIAL

COURTS DECISION ADOPTING IN TOTO THE REPORT OF THE
COMMISSIONER
A

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS

DECISION THAT THE MEMORANDUM OF AGREEMENT IS
UNENFORCEABLE
B

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS

DECISION LIMITING THE LIABILITY OF RESPONDENT IN THE AMOUNT
OF P61,498,849.00 AS OF DECEMBER 31, 1990 INSTEAD OF P2,656,573,716.11
III

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS

ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND WRITS OF
PRELIMINARY AND PERMANENT INJUNCTION.
Anent the first assigned error, petitioner APT insists that the lower court as well as the Court
of Appeals disregarded the principles of the due process clause embodied in the Constitution
when it found APT to have waived its right to cross-examine respondents witnesses. On the
other hand, respondent CCC counters that the findings of the lower court may be attributed to the
fault of APTs counsel. CCC alleges that the counsel for APT often absented himself on
scheduled hearing dates, resulting in the failure to cross-examine the witnesses of respondent
CCC.
The insistence of the petitioner is without basis.
Long ingrained in our jurisprudence is the principle that there can be no denial of due
process where a party had the opportunity to participate in the proceedings but did not do so.[12]
As shown from the records, the counsel for APT was absent on several occasions,
specifically on April 7, May 5, June 2, June 16, August 24 and 25, 1992. Several reasons were
raised by APTs counsel to justify his absence, such as withdrawal of previous counsel,
unreadiness to conduct the cross-examinations, and serious illness.
These flimsy excuses do not warrant consideration from this Court. The withdrawal of
APTs previous counsel in the thick of the proceedings would be a reasonable ground to seek

postponement of the hearing. However, such reason necessitates a duty, nay an obligation, on
the part of the new counsel to prepare himself for the next scheduled hearing. The excuse that it
was due to the former counsels failure to turn over the records of the case to APT, shows the
negligence of the new counsel to actively recover the records of the case. Mere demands are not
sufficient. Counsel should have taken adequate steps to fully protect the interest of his client,
rather than pass the blame on the previous counsel.
A motion to postpone trial on the ground that counsel is unprepared for trial demonstrates
indifference and disregard of a clients interest. A new counsel who appears in a case in
midstream is presumed and obliged to acquaint himself with all the antecedent processes and
proceedings that have transpired prior to his takeover.[13]
As regards the serious illness suffered by counsel during the trial dates of August 24 and 25,
1992, we take note that Dengue Hemorrhagic Fever, if not treated at its early stage, could cause
serious illness, sometimes even death. This Court is not unmindful of the fact that counsels
absence was due to this deadly disease. What baffles this Court is the reason offered by counsel
that although two other APT lawyers were mentioned in the pleadings, only one was actively
involved in the handling of the case.[14] Counsel further adds that he could not have possibly appraised the
two other lawyers to appear during the scheduled hearing in his absence.

We cannot understand why it would be difficult for counsel to appraise his two other
collaborating counsels. Counsel himself readily admits that of the two, only one is actively
handling the case. It would take a mere phone call to inform his co-counsels than he would be
unable to attend rather than be declared absent during trial. Yet, counsel failed to do so.
In view of the foregoing, we find the Court of Appeals did not commit error, when it
declared that petitioner waived its right to cross-examine the respondents witnesses. The due
process requirement is satisfied where the parties are given the opportunity to submit position
papers,[15] as in this case. Both parties, CCC and DBP/APT, were given opportunity to submit
their respective position papers after the Commissioner rendered his report. Contained in their
position papers were their respective comments and objections to the said report. Furthermore,
the parties were also given the chance to cross-examine the Commissioner and his
representative. They were likewise granted opportunity to cross-examine the witnesses of the
other party, however, like in APTs case, they were deemed to have waived their right, as
previously discussed.
The essence of due process is that a party be afforded a reasonable opportunity to be heard
and to support any evidence he may have in support of his defense.[16] What the law prohibits is
absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process
when he had been afforded the opportunity to present his side.[17]
As to the second assigned error, petitioner avers that the Court of Appeals erred when it
affirmed the trial courts decision adopting in toto the report of the Commissioner and the
decision of the trial court declaring the Memorandum of Agreement as unenforceable.
The above-mentioned issues involve matters which are factual in nature. As a general rule,
findings of fact of the Court of Appeals are binding and conclusive upon this Court, and we will
not normally disturb such factual findings unless the findings of the court are palpably
unsupported by the evidence on record or unless the judgment itself is based on a
misapprehension of facts.[18]
In the case at bar, we find no such error that would warrant a reversal of the assailed
decision. As to the matter of the memorandum of agreement, we concur with the decision of the
Court of Appeals. The Memorandum of Agreement itself stated that failure of Continental to
meet this deadline shall be construed as its objection to this new restructuring
scheme.[19] Moreover, CCC did not execute nor submit all the documents needed to make said

agreement effective. The fact that CCC did not comply with the requirements of the
Memorandum of Agreement at the expiration of the period set by DBP, only shows CCCs nonconformity to the agreement.
Since CCC did not express its conformity to the agreement, it was only proper for the
Commissioner to consider the amount of indebtedness of CCC based on actual loan
releases. The Commissioner did consider the Memorandum of Agreement as a source document,
however, no one was able to satisfactorily explain how the figure was arrived at. It must be
emphasized that the Commissioners report was limited in relation to four (4) straight peso loans
and two (2) guaranteed foreign exchange loans. It is, therefore, erroneous for APT and DBP to
conclude that CCCs entire outstanding obligations stood atP2,656,573,716.11.
As regards the determination of the Commissioner as to the actual indebtedness of CCC, we
uphold the ruling of the respondent court. The very reason why the Commissioner was
appointed as such was due to the complex nature of the issues involved in the case which
required the technical know-how and expertise possessed by the Commissioner. The records
also bear the fact that said Commissioner was chosen by both parties.
As we have previously ruled in Quebral vs. CA[20] that factual findings of the Court of
Appeals normally are not reviewable by this Court under Rule 45 of the Rules of Court, except
when the findings of the appellate court are at variance with those of the trial court. Since the
trial court and the Court of Appeals were in unison with the findings of the Commissioner, this
Court is of the opinion that it finds no compelling reason to reverse the same.
Lastly, petitioner APT argues that the Court of Appeals erred in affirming the trial courts
issuance of a temporary restraining order and a writ of preliminary and permanent injunction
against it (APT), despite the express provisions of Proclamation No. 50. On the other hand,
CCC asseverates that since APT was a mere transferee pendente lite, it was bound by the
preliminary injunction previously issued against DBP.
We find merit in the assigned error of petitioner APT.
It must be recalled that the trial court did in fact issue a Writ of Preliminary Injunction
against petitioner APT. The particular section which contains the non-injunction rule is
quoted hereunder:

Courts may not substitute their judgment for that of APT, nor block, by an injunction
the discharge of its function and the implementation of its decision in connection with
the acquisition, sale, or disposition of assets transferred to it.[21]
Furthermore, we reiterate the ruling held in that case that Proclamation No. 50 does not
infringe any provision of the Constitution. Thus

The President, in the exercise of his legislative power under the Freedom
Constitution, issued Proclamation No. 50-A prohibiting the courts from issuing
restraining orders and writ of injunction against the APT and the purchasers of any
asset sold by it, to prevent courts from interfering in the discharge, by this
instrumentality of the executive branch of the Government, of its task of carrying out
`the expeditious disposition and privatization of certain government corporations
and/or the assets thereof (Proc. No. 50), absent any grave abuse of discretion
amounting to excess or lack of jurisdiction on its part. This proclamation, not being
inconsistent with the Constitution and not having been repealed or revoked by
Congress, has remained operative (Section 3, Art. XVIII, 1987 Constitution).[22]

The records of the case at bar does not disclose any grave abuse of discretion committed by
petitioner APT amounting to excess or lack of jurisdiction in its effort to take possession of the
assets transferred to it by DBP. We are of the opinion that petitioners simply availed of judicial
processes to recover the transferred assets formerly owned by DBP. We hold respondent Court
of Appeals liable of committing the assigned error.
In sum, petitioner APT was not denied its right to due process when it failed to crossexamine respondents witnesses as this was due to its own counsels failure and negligence. A
party cannot feign denial of due process when he had the opportunity to present his side.[23] A
careful review of the records reveal that DBP had the opportunity to exhaustively cross-examine
respondents witnesses. Furthermore, as transferee pendente lite, APT merely stepped into the
shoes of DBP.
As regards the indebtedness of CCC, petitioners APT/DBP must be reminded that all is not
lost when the Commissioner ruled that the outstanding loans amounted to P61,498,849.00
only. As manifested by the Commissioner, the report limited itself to four (4) straight peso loans
and two (2) guaranteed foreign exchange loans. This was due to the insufficiency of supporting
documents submitted by both parties. We wish to state that the affirmation by this Court of the
rulings of the Court of Appeals as to the indebtedness of CCC, does not in any way prejudice
APT/DBPs right to recover from CCC, provided they are fully able to substantiate their claim.
WHEREFORE, the petition is hereby DENIED and the assailed decision is hereby
AFFIRMED but with modification as follows:
The writ of preliminary injunction issued on January 17, 1986, and the writ of permanent
injunction issued on October 5, 1992 are hereby declared NULL AND VOID pursuant to Section
31, Proclamation No. 50.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Melo, Kapunan, and Pardo, JJ., concur.

[1]

Penned by Associate Justice Corona Ibay-Somera, with Associate Justice Justo P. Torres, Jr. and Associate
Justice Conrado M. Vasquez, Jr., concurring. (Special Thirteenth Division)
[2]

PROCLAIMING AND LAUNCHING A PROGRAM FOR THE EXPEDITIOUS DISPOSITION AND

PRIVATIZATION OF CERTAIN GOVERNMENT CORPORATIONS AND/OR THE ASSETS THEREOF AND
CREATING THE COMMITTEE ON PRIVATIZATION AND THE ASSET PRIVATIZATION TRUST. (Vital
legal documents in the New Peoples Government, Vol. 104, p. 1)
[3]

Former Central Bank Governor and former Secretary, Department of Education.

[4]

The MOA was executed on July 10, 1981. The primary purpose of the MOA was to restructure the outstanding
balance of CCC as of August 31, 1979. Among other things, the MOAs refinancing scheme provided that:
(A) CCCs outstanding obligations in the amount of P35.0 million was converted into preferred shares in order
to enable CCC to meet DBPs required 75/25 debt/equity ratio and the over all eighty percent (80%)
collateral ratio.
(B)
The remaining portion of the obligation in the amount of P98,851,004.04 shall be converted into a foreign
currency obligation, to be drawn from whatever shall be available out of DBPs outstanding direct foreign currency
borrowings, the same to be made payable to DBP in monthly installments over fifteen (15) years with interest at
twelve percent (12%) per annum, the first installment to become due within the first ten (10) days of September
1979. The monthly installments due shall be the peso equivalent thereof, based on the prevailing rate of exchange
on the day actual payments are made to DBP, or on the date DBP paid for the installments, whichever is higher.
[5]

Authorized Representative of the Commissioner.

[6]

Memorandum for Petitioner, Rollo, p. 176.

[7]

Petition, Rollo, p. 15.

[8]

Petition, Rollo, p. 12.

[9]

Decision of RTC-Branch 9, Malolos, Bulacan, October 5, 1992, Rollo, pp. 13-14.

[10]

Petition, Rollo, p. 15.

[11]

Court of Appeals decision, Rollo, p. 75.

[12]

Loong vs. Commission on Elections, 275 SCRA 1

[13]

Villasis vs. Court of Appeals, 60 SCRA 120

[14]

Memorandum of Petitioner; Rollo, p. 190.

[15]

Salonga vs. NLRC, 254 SCRA 111.

[16]

Midas Touch Food Corporation vs. NLRC, 259 SCRA 652.

[17]

Garcia vs. NLRC, 264 SCRA 261.

[18]

Valenzuela vs. Court of Appeals, 253 SCRA 303.

[19]

Paragraph 2(c), MOA; Court of Appeals Decision; Rollo, p. 67.

[20]

252 SCRA 353.

[21]

Section 31, Proc. No. 50.

[22]

Ibid.

[23]

People vs. Acol, 232 SCRA 406.

[Syllabus]

SECOND DIVISION

[G.R. No. 98310. October 24, 1996]

MATUGUINA INTEGRATED WOOD PRODUCTS, INC., petitioner,

vs. The HON. COURT OF APPEALS, DAVAO ENTERPRISES
CORPORATION, The HON. MINISTER, (NOW SECRETARY) of
NATURAL RESOURCES AND PHILLIP CO, respondents.
DECISION
TORRES, JR., J.:
Matuguina Integrated Wood Products Inc. (MIWPI, for brevity) filed this action for
prohibition, Damages and Injunction, in order to prevent the respondent Minister (now
Secretary) of Natural Resources from enforcing its Order of Execution against it, for
liability arising from an alleged encroachment of the petitioner over the timber
concession of respondent DAVENCOR located in Mati, Davao Oriental.
The Regional Trial Court, Branch 17, Davao City, ruled in favor of the petitioner, but
on appeal, was reversed by the respondent Court of Appeals in its decision
dated February 25, 1991, which found MIWPI, as an alter ego of Milagros Matuguina
and/or Matuguina Logging enterprises (MLE, to be liable to DAVENCOR for illegal
encroachment.
The following are the antecedent facts:
On June 28, 1973, the Acting Director of the Bureau of Forest Development issued
Provisional Timber License (PTL) No. 30, covering an area of 5,400 hectares to Ms.
Milagros Matuguina who was then doing business under the name of MLE, a sole
proprietorship venture. A portion, covering 1,900 hectares, of the said area was located
within the territorial boundary of Gov. Generoso in Mati, Davao Oriental, and adjoined
the timber concession of Davao Enterprises Corporation (DAVENCOR), the private
respondent in this case.
On July 10, 1974, petitioner Matuguina Integrated Wood Products, Inc. (MIWPI),
was incorporated, having an authorized capital stock of Ten Million Pesos
(P10,000,000.00).[1] The incorporators/stockholders of MIWPI, and their stock
subscriptions were as follows:

Name
Subscribed

No. Of Shares
Amount of Capital

Stock Subscribed
1. Henry
Wee
,000.00

1,160,000

1,160

2. Ma. Milagros
Matuguina

400,000

400,000.00

3. Alejandro Chua
Chun
200,000
4. Bernadita
Chua
0
5. Domingo
Herrera
6. Manuel
Hernaez
00
7. Luis
Valderama
000.00

200,000.00

120,000

120,000.0

40,000

40,000.00

40,000

40,000.

40,000

40,

---------------------------------2,000,000
2,000,000.00
===========
===========
Milagros Matuguina became the majority stockholder of MIWPI on September 24,
1974, when the latters Board of Directors approved by Resolution the transfer of
1,000,000 shares from Henry Wee to Milagros Matuguina, thus giving her seventy
percent (70%) stock ownership of MIWPI.
In an undated letter[2] to the Director of Forest Development (BFD) on November
26, 1974, Milagros Matuguina requested the Director for a change of name and transfer
of management of PTL No. 30, from a single proprietorship under her name, to that of
MIWPI.
This request was favorably endorsed on December 2, 1974[3] by the BFDs Acting
Director, Jose Viado to respondent Secretary of Natural Resources, who approved the
same onSeptember 5, 1975.[4]
On July 17, 1975, Milagros Matuguina and petitioner MIWPI executed a Deed of
Transfer[5] transferring all of the formers rights, interests, ownership and participation in
Provincial Timber License No. 30 to the latter for and in consideration of 148,000 shares
of stocks in MIWPI.
A copy of said deed was submitted to the Director of Forest Development and
Petitioner MIWPI had since been acting as holder and licensee of PTL No. 30.
On July 28, 1975, pending approval of the request to transfer the PTL to MIWPI,
DAVENCOR, through its Assistant General Manager, complained to the District
Forester at Mati, Davao Oriental that Milagros Matuguina/MLE had encroached into and
was conducting logging operations in DAVENCORs timber concession.

After investigation of DAVENCORs complaint, the Investigating Committee which

looked into DAVENCORs complaint submitted its report to the Director, finding that
MLE had encroached on the concession area of DAVENCOR. In line with this, the
Director of Forest Development issued an Order[6] on July 15, 1981, finding and
declaring MLE to have encroached upon, and conducted illegal logging operations
within the licensed or concession area of DAVENCOR.
MLE appealed the Order to the Ministry of Natural Resources, which appeal was
docketed as MNR CASE No. 6450. During the pendency of the appealed case with the
Minister of Natural Resources, Ma. Milagros Matuguina disposed of her shares in
petitioner MIWPI, thereby ceasing to be a stockholder of the petitioner of March 16,
1986.[7]
On October 1, 1986, The Minister of Natural Resources, Hon. Ernesto M. Maceda
rendered his Decision,[8] affirming the aforesaid order of the Director of Forest
Development, stating thus:

DECISION
For our Resolution is the appeal by MATUGUINA LOGGING ENTERPRISES
(MLR, for short) of the Order dated 15 July 1991 of the Director of Forest
Development finding and declaring MLE to have encroached upon, and conducted
illegal logging operations within the license or concession area of DAVAO
ENTERPRISES CORPORATION. The aforesaid Order dispositively states:
WHEREFORE, there being a clear and convincing proof that Matuguina Conducted
illegal operation within the licensed area of DAVENCOR, above named respondent is
hereby ordered to pay to the complainant the equivalent value in pesos of 2,352.04
cubic meters of timber based on the market price obtaining, at the logpond of the
respondent at the time of cutting, minus the cost of production, or to restitute to the
complainant equal volume of 2,352.04 cubic meters of logs owned by respondent to
be taken at respondents logpond. The respondent is hereby directed to comply with
this Order within a period of ninety (90) days from receipt of this Order and after the
lapse of the said period, no compliance has been made by the respondent, its logging
operations shall ipso facto become automatically suspended until respondent shall
have complied as directed.
The Regional Director of Region II, Davao City is hereby instructed to implement this
Order and to submit his compliance report within ten (10) days after the lapse of the
ninety (90) days period within which the respondent is directed to comply with this
order.
And that the dispositive portion of the said decision states;

WHEREFORE, the Order dated 15 July 1981 of the Director of Forest Development
is hereby AFFIRMED.
When the Decision of the Minister of Natural Resources became final and
executory, Philip Co and DAVENCOR requested the respondent Minister on October
30, 1986 to issue immediately a writ of execution against MLE and/or MIWPI. [9] The

Order of Execution[10] was issued on January 6, 1987 by the Minister through the latters
Assistant on Legal Affairs. The said Order directed the issuance of a writ of execution,
not only against MLE, but likewise against MIWPI. The dispositive portion of the order
provides:

WHEREFORE, let a Writ of Execution be issued against Matuguina Logging

Enterprises and/or Matuguina Integrated Wood Products, Inc. For the satisfaction of
the Decision of the Bureau of Forest Development dated 15 July 1981, and the Order
of this office dated 1 October 1986.
SO ORDERED.
Subsequently, a writ of execution[11] dated January 8, 1987 was issued in favor of
the respondent DAVENCOR, which states:

The City/Provincial Sheriff

Davao City
GREETINGS:
You are hereby directed to enforce, implement and execute the Order of Execution
dated 06 June 1987 of this Office in the above-entitled case against Matuguina
Logging Enterprises and/or Matuguina Integrated Wood Products, Inc. its officers or
any person or corporation in its behalf and conformably with the Order dated 15 July
1981 of the Director of Forest Development, stating dispositively.
xxx

You are hereby requested to submit your return to this Office within the period of
sixty (60) days from your receipt hereof as to action taken hereon.
SO ORDERED."
On February 11, 1987, MIWPI filed the instant complaint [12] for prohibition, damages
and injunction, with prayer for restraining order, which case was docketed as Civil Case
No. 18,457-87 in the Regional Trial Court Davao City, Branch 17. MIWPI stated its
primary cause of action, the relevant portion of which reads, viz.:

5. That plaintiff which has a distinct and separate personality of its own under the
law, and was never a party to the case between DAVENCOR and MLE, suddenly
became a party to the case after the decision became final and executory with the
issuance of Annex B hereof for reasons known to the defendants alone:
6. That the issuance of Annex B hereof (the order of execution) by the defendant
Minister has been made not only without or in excess of his authority but that the
same was issued patently without any factual or legal basis, hence, a gross violation of
plaintiffs constitutional rights under the due process clause;

7. That plaintiff, in the face of the order (Annex B) complained of, there being no
appeal or any plain, speedy, and adequate remedy in the ordinary course of law, does
not have any alternative but to ventilate the present recourse;
8. That defendant Minister is doing, threatens or is about to do, or is procuring or
suffering to be done, some act which definitely is in violation of the plaintiffs rights
respecting the subject matter of the action, and unless said act or acts are restrained or
prohibited at least during the pendency of this case, said act or acts would probably
work not only injustice to plaintiff but world tend to render the judgment of this
Honorable court ineffectual;
9. That the commission or continuance of the acts complained of during the present
litigation would not only cause great and irreparable injury, but will also work
injustice to the plaintiff, and would complicate, aggravate and multiply the issues in
this case;
10. That the plaintiff is entitled to the relief demanded, and the whole or part of such
relief consist in restraining the commission or continuance of the acts complained of,
or in the performance of acts, either for a limited period or perpetually;
11. That great and irreparable injury would inevitably result to the plaintiff before the
matter can be heard on notice, hence, immediate issuance of a restraining order is
necessary and proper;
12. That the plaintiff is willing and able to file the necessary bond executed to the
defendants, in an amount to be fixed by the Court, to the effect that the plaintiff will
pay to the defendants all damages which they may sustain by reason of the injunction
if the court should finally decide that the plaintiff was not entitled thereto.
MIWPI, likewise alleges that in wantonly and imprudently procuring the Writ of
Execution against it, which DAVENCOR and Philip Co seek to enforce a 2.5 Million
Peso liability of plaintiff, the latter has been constrained to bring the present action,
thereby incurring damages in the sum of P500,000.00 in concept of actual and
compensatory damages, andP250,000.00 in attorneys fees, which amount petitioner
now seeks to recover.
The trial court issued a temporary restraining order the next day, February 12,
1987, restraining and/or enjoining the private respondents and the Hon. Secretary of
Natural Resources from enforcing, implementing and/or carrying into effect, the decision
of the respondent Secretary dated October 1, 1986, as well as the order of execution
dated January 6, 1987.
On February 17, 1987, private respondent filed a Motion to Dismiss [13] alleging that
the trial court had no jurisdiction over the case under Presidential Decree No. 705, to
which Motion to Dismiss, petitioner filed an Opposition[14] dated February 1987. On
March 9, 1987, the trial court issued an order[15] denying private respondents Motion to
Dismiss. Hence, private respondents filed their Answer[16] dated March 13, 1987 and an
Amended Answer[17]
In the latter pleading, private respondents raised the following special and
affirmative defenses:

7. That neither Milagros Matuguina nor Matuguina Integrated Wood Products, Inc.
advised defendant Davencor of the change of name, and transfer of management of
PTL No. 30. From Milagros Matuguina to Matuguina Integrated Wood Products, Inc.,
during the pendency of MNR Case No. 6540 before the Bureau of Forest Develoment
and the Ministry of Natural Resources, notwithstanding that the lawyer of matuguina
Integrated Wood Products, Inc., who was also a stockholder thereof, had appeared for
Milagros Matuguina in said administrative case.
8. That plaintiff has acted in bad faith and is now in estoppel from questioning the
Writ of Execution issued against Milagros Matuguina (now Matuguina Integrated
Wood Products, Inc.) to satisfy the judgment in MNR Case No. 6540.
9. This Honorable Court has no jurisdiction over the nature and subject matter of this
action, especially because:
(a)

The plaintiff has not exhausted administrative remedies available to it

before initiating this action;

(b)

In the guise of entertaining an action for damages, this Court is being

misled by the plaintiff into deciding questions properly for the
Department of Natural Resources to decide exclusively in the lawful
exercise of its regulatory jurisdiction;

(c)

The plaintiff is now precluded and estopped from filing this action.

10. The plaintiff has no cause of action against the defendants and has not stated any
in its complaint, especially because:
(a)

Having failed to exhaust administrative remedies, plaintiff is without a

ripe cause of action that can be pleaded before this Honorable Court;

(b)

In substance, there is no justifiable question raised under the facts and

circumstances of this case.

Meanwhile, on June 2, 1987, the trial court issued an order [18] granting the
petitioners prayer for the issuance of a writ of preliminary injunction against the private
respondents and the Secretary of Natural Resources, ordering them to desist, refrain
and prevent from enforcing respondent Secretarys Decision dated October 1, 1986 as
well as the writ of execution dated January 8, 1987.
On May 10, 1989, the trial court rendered its Decison [19] in favor of the petitioner,
disposing of the action as follows:

WHEREFORE, in view of the foregoing, finding the evidence of plaintiff,

Matuguina Integrated Wood Products, Inc. sufficient to sustain a preponderance of
evidence, showing that the order of execution dated January 6, 1987, issued by the
Minister of Natural Resources, through Alexander C. Castro, Assistant Minister for
Legal Affairs, included therein, plaintiff Matuguina Integrated Wood Products, Inc.,
despite non-inclusion of plaintiff in the decision of the then Minister of Natural

Resources, dated October 1, 1986, already final and executory before the issuance of
the order and execution, said order or execution is hereby declared null and void and
without any legal effect.
As a consequence thereof, the writ of preliminary injunction issued by this court,
dated June 2, 1987 is hereby made permanent.
Moreover, as a result of the filing of this case, defendant Philip Co and Davencor
Corporation, are ordered to jointly and severally pay the amount of P100,000.00 as
actual and compensatory damages, along with another amount of P20,000.00 as
attorneys fees and costs of this action, in favor of plaintiff Matuguina Integrated
Wood Products, Inc.
SO ORDERED.
Private respondents appealed the trial courts decision on May 19, 1989. Their
notice of appeal was approved by the trial court. The appealed case was docketed with
respondent Honorable Court of Appeals as CA-G.R. SP No. 19887.
On February 25, 1991, the respondent Court rendered its Decision,[20] reversing the
lower courts pronouncement. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the decision appealed from is reversed and set
aside and the Order of Execution issued by the Minister of Natural Resources dated
January 6, 1987 is affirmed. Without pronouncement as to costs.
SO ORDERED.
In due time, petitioner filed a motion for reconsideration. [21] Private respondents filed
their opposition[22] to the same on April 2, 1991. In a Resolution[23] dated April 12, 1991,
the motion was denied by the respondent Court.
Not content with the courts pronouncement, petitioner is now before us on a
Petition for Review on Certiorari,[24] alleging that the respondent court acted with grave
abuse of discretion in rendering the questioned decision and its companion resolution,
denying the motion for reconsideration.
The reasons relied upon by the Petitioner in filing its petition are hereby restated:
I

PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN IT WAS

MADE LIABLE BY RESPONDENT SECRETARY OF NATURAL
RESOURCES IN HIS ORDER OF EXECUTION DATED 06 JANUARY
1987 (EXHIBIT B OF ATTACHMENT O) ISSUED IN MNR CASE NO.
6540 DESPITE THE FACT THAT PETITIONER WAS NEVER A PARTY
NOR A PARTICIPANT IN THE SAID CASE: IN FACT, PETITIONER
NEVER HAD NOTICE OF THE PROCEEDINGS IN MNR CASE NO. 6540.
II

THE FAILURE TO AFFORD PETITIONER THE OPPORTUNITY TO BE

HEARD IN THE ADMINISTRATIVE LEVEL (MNR CASE NO. 6540)

COULD NOT HAVE BEEN CURED BY THE INSTITUTION OF THE

ACTION FOR PROHIBITION IN THE TRIAL COURT BECAUSE SAID
COURT HAD NO JURISDICTION TO DETERMINE WHETHER
PETITIONER WAS GUILTY OF ENCROACHMENT ON PRIVATE
RESPONDENT DAVENCORS TIMBER CONCESSION; FURTHERMORE,
THE QUESTION ON WHETHER PETITIONER WAS GUILTY OF
ENCROACHMENT WAS NEVER PUT IN ISSUE IN THE CASE BEFORE
THE TRIAL COURT.
III

THE LIABILITY OF MILAGROS/MLE AS FOUND BY RESPONDENT

SECRETARY IN ITS DECISION DATED 01 OCTOBER 1986 (EXHIBIT
A OF THE ATTACHMENT 0) CANNOT BE IMPUTED AGAINST
PETITIONER SINCE THE LATTER IS A CORPORATION HAVING A
PERSONALITY SEPARATE AND DISTINCT FROM MILAGROS/MLE.
IV

PETITIONER CANNOT BE MADE LIABLE TO PRIVATE RESPONDENTS

UNDER THE DEED OF TRANSFER DATED 18 JULY 1975 (EXHIBIT 3
OF ATTACHMENT P) AND SECTION 61 OF THE REVISED FORESTRY
CODE OF THE PHILIPPINES (P.D. 705, AS AMENDED):
A.

THE ALLEGED TRANSFER OF PTL NO. 30 FROM

MILAGROS/MLE TO PETITIONER NEVER BECAME BINDING
AND EFFECTIVE SINCE PTL NO. 30 REMAINED IN THE NAME
OF MILAGROS/MLE UNTIL ITS EXPIRATION ON 30 JUNE
1977: THIS IS DUE TO THE FACT THAT SAID TRANSFER WAS
NEVER APPROVED BY THE SECRETARY OF NATURAL
RESOURCES.

B.

GRANTING ARGUENDO THAT THERE WAS AN EFFECTIVE

TRANSFER OF PTL NO. 30 FROM MILAGROS/MLE TO
PETITIONER, THE TRANSFER COULD NOT MAKE PETITIONER
LIABLE FOR THE ALLEGED ENCROACHMENT OF PRIVATE
RESPONDENT DAVENCORS TIMBER CONCESSION, SINCE:
1.

SAID TRANSFER WAS EXECUTED PRIOR TO THE

COMMISSION OF THE ALLEGED ENCROACHMENT AND
THE FILING OF THE ADMINISTRATIVE COMPLAINT FOR
ENCROACHMENT DATED 28 JULY 1975; THUS,
PETITIONER CANNOT BE MADE LIABLE FOR
OBLIGATONS OF MILAGROS/MLE WHICH WERE
INCURRED AFTER DATE OF THE SAID TRANSFER.

2.

SAID TRANSFER COVERED ONLY FORESTRY CHARGES

AND OTHER GOVERNMENT FEES, AND DID NOT
INCLUDE THE PERSONAL LIABILITY OF MILAGROS/MLE

THAT AROSE FROM THE ENCROACHMENT OF THE

TIMBER CONCESSION OF RESPONDENT DAVENCOR.[25]
Private Respondent DAVENCOR and the public respondent Hon. Minister (now
Secretary) of Natural Resources filed separate Comments[26] on September 5, 1991 and
June 8, 1992 respectively.
The essential issues of the present controversy boil down to the following:
Was the Petitioner denied due process when it was adjudged liable with MLE for
encroaching upon the timber concession of DAVENCOR in the respondent Minister's
order of Execution?
Is the petitioner a transferee of MLE's interest, as to make it liable for the latters
illegal logging operations in DAVENCORs timber concession, or more specifically, is it
possible to pierce the veil of MIWPIs corporate existence, making it a mere conduit or
successor of MLE?
Generally accepted is the principle that no man shall be affected by any proceeding
to which he is a stranger, and strangers to a case are not bound by judgment rendered
by the court. In the same manner an execution can be issued only against a party and
not against one who did not have his day in court. In Lorenzo vs. Cayetano, 78 SCRA
485 [1987], this Court held that only real parties in interest in an action are bound by
judgment therein and by writs of execution and demolition issued pursuant thereto.[27]
Indeed a judgment cannot bind persons who are not parties to the action.[28] It is
elementary that strangers to a case are not bound by the judgment rendered by the
court and such judgment is not available as an adjudication either against or in favor of
such other person. A decision of a court will not operate to divest the rights of a person
who has not and has never been a party to a litigation, either as plaintiff or as
defendant. Execution of a judgment can only be issued against one who is a party to
the action, and not against one who, not being a party in the action has not yet had his
day in court.[29]
The writ of execution must conform to the judgment which is to be executed, as it
may not vary the terms of the judgment it seeks to enforce. [30] Nor may it go beyond the
terms of the judgment which sought to be executed. Where the execution is not in
harmony with the judgment which gives it life and exceeds it, it has pro tanto no
validity. To maintain otherwise would be to ignore the constitutional provision against
depriving a person of his property without due process of law.[31]
The writ of execution issued by the Secretary of Natural Resources on January 8,
1987 clearly varies the term of his Decision of October 1, 1986, inasmuch as the Writ
includes the MIWPI as party liable whereas the Decision only mentions Milagros
Matuguina/MLE.
There is no basis for the issuance of the Order of Execution against the
petitioner. The same was issued without giving the petitioner an opportunity to defend
itself and oppose the request of DAVENCOR for the issuance of a writ of execution
against it. In fact, it does not appear that petitioner was at all furnished with a copy of
DAVENCORs letter requesting for the Execution of the Honorable Secretarys decision
against it. Petitioner was suddenly made liable upon the order of execution by the
respondent Secretarys expedient conclusions that MLE and MIWPI are one and the
same, apparently on the basis merely of DAVENCORs letter requesting for the Order,
and without hearing or impleading MIWPI. Until the issuance of the Order of execution,
petitioner was not included or mentioned in the proceedings as having any participation

in the encroachment in DAVENCORs timber concession. This action of the respondent

Secretary disregards the most basic tenets of due process and elementary fairness.
The liberal atmosphere which pervades the procedure in administrative proceedings
does not empower the presiding officer to make conclusions of fact before hearing all
the parties concerned.[32] In Police Commission vs. Hon Judge Lood,[33] we held that the
formalities usually attendant in court hearings need not be present in an administrative
investigation, provided that the parties are heard and given the opportunity to adduce
their evidence. The right to notice and hearing is essential to due process and its nonobservance will, as a rule, invalidate the administrative proceedings.
As observed by the appellate court, to wit:

the appellant should have filed a Motion with the Minister with Notice to the
appellee to include the latter as party liable for the judgment in order to afford the
appellee an opportunity to be heard on its liability for the judgment rendered against
Ma. Milagros Matuguina doing business under the name Matuguina Logging
Enterprises.[34]
Continuing, the said court stated further that:

Nevertheless, the failure to comply with the procedure in order to satisfy the
requirements of due process was cured by the present action for prohibition where the
liability of appellee has been ventilated.
We do not agree. Essentially, Prohibition is a remedy to prevent inferior courts,
corporations, boards or persons from usurping or exercising a jurisdiction or power with
which they have not been vested by law[35] As we held in Mafinco Trading Corporation
vs. Ople, et al,[36] in a certiorari or prohibition case, only issues affecting the jurisdiction
of the tribunal, board and offices involved may be resolved on the basis of undisputed
facts.
The issue of whether or not petitioner is an alter ego of Milagros Matuguina/MLE, is
one of fact, and which should have been threshed out in the administrative proceedings,
and not in the prohibition proceedings in the trial court, where it is precisely the failure of
the respondent Minister of Natural Resources to proceed as mandated by law in the
execution of its order which is under scrutiny.
Assuming, arguendo, that prohibition is the proper remedy for determining the
propriety of piercing the separate personality of petitioner with its stockholders, the
evidence presented at said trial does not warrant such action.
It is settled that a corporation is clothed with a personality separate and distinct from
that of persons composing it. It may not generally be held liable for that of the persons
composing it. It may not be held liable for the personal indebtedness of its stockholders
or those of the entities connected with it. Conversely, a stockholder cannot be made to
answer for any of its financial obligations even if he should be its president. [37] But when
the juridical personality of the corporation is used to defeat public convenience, justify
wrong, protect fraud or defend crime, the corporation shall be considered as a mere
association of persons (Koppel, Inc. vs. Yatco, 77 Phil 496, Palay, Inc. vs. Clave, G.R.
No. 56076, September 21, 1983, 124 SCRA 638), and its responsible officers and/or
stockholders shall be individually liable (Namarco vs. Associated Finance Co., Inc., G.R.
No. L- 20886, April 27, 1967, 19 SCRA 962). For the same reasons, a corporation shall
be liable for the obligations of a stockholder (Palacio vs. Fely Transportation Co., G.R.

No. L-15121, August 31, 1963, 5 SCRA 1011), or a corporation and its successor-ininterest shall be considered as one and the liability of the former attach to the latter. [38]
But for the separate juridical personality of a corporation to be disregarded, the
wrongdoing must be clearly and convincingly established. It cannot be presumed.[39]
In the case at bar, there is, insufficient basis for the appellate courts ruling that
MIWPI is the same as Matuguina. The trial courts observation is enlightening.

Despite apparently opposing evidence of both parties, the Court gathered and finds,
that defendants attempt to pierce the veil of corporate personality of plaintiff
corporation, as to consider plaintiff corporations merely an adjunct or alter ego of
Maria Milagros Matuguina Logging Enterprises, to justify defendants claim against
plaintiff corporation, suffers heavily from insufficiency of evidence.
It is the vehement contention of defendants, to bolster its claim, that plaintiff
corporation is the alter ego of Maria Milagros Matuguina Logging Enterprises,
because when Milagros Matuguina became the Chairman of the Board of Directors of
plaintiff corporation, she requested for the change of name and transfer of
management of PTL No. 30, from her single proprietorship, to plaintiff corporation.
Secondly, when Milagros Matuguina executed the deed of transfer, transferring her
forest concession under PTL No, 30, together with all the structures and
improvements therein, to plaintiff corporation, for a consideration of P14,800.00
representing 148,000 shares of stocks of plaintiff corporation actually all existing
shares of stocks of Milagros Matuguina, in plaintiff corporation represents 77.4%
therein; suffice to say that plaintiff corporation practically became an alter ego of
Milagros Matuguina.
Defendants arguments on this peripheral aspect of corporate existence, do not at all
indicate that such a legal fiction, was granted.
In the first place the alleged control of plaintiff corporation was not evident in any
particular corporate acts of plaintiff corporation, wherein Maria Milagros Matuguina
Logging Enterprises using plaintiff corporation, executed acts or powers directly
involving plaintiff corporation.
Neither was there any evidence of defendants, that Maria Milagros Matuguina
Logging Enterprises, using the facilities and resources of plaintiff corporation,
involved itself in transaction using both single proprietorship and plaintiff corporation
in such particular line of business undertakings.
As stated by this court in resolving plaintiffs prayer for issuance of a writ of
preliminary injunction, said:
There is actually, no evidence presented by defendant, showing that sometime on
March 15, 1986, to January 1987, during which period, the subject decision of Hon.
Secretary of Natural Resources and corresponding writ of execution, Maria Milagros

Matuguina was a stockholder of plaintiff corporation in such amount or was she an

officer of plaintiff corporation in whatever capacity.
The above circumstances is relevant and significant to assume any such justification
of including plaintiff corporation in the subject writ of execution, otherwise as
maintained by defendants, what matters most was the control of Milagros Matuguina
Logging Enterprises of plaintiff corporation in 1974 and 1975, when the
administrative case was pending, this circumstance alone without formally including
plaintiff corporation in said case, will not create any valid and sufficient justification
for plaintiff corporation, to have been supposedly included in the suit against
defendants and Maria Milagros Matuguina Logging Enterprises, in the administrative
case.
Yet, granting as claimed by defendants, that in 1974 or in 1975, Maria Milagros
Matuguina became the controlling stockholder of plaintiff corporation, on account of
the change of name and transfer of management of PTL No. 30, this circumstance, we
repeat, does not of itself prove that plaintiff corporation was the alter ego of Maria
Milagros Matuguina Logging Enterprise, as enunciated in various decisions of this
Court, to wit:
It is important to bear in mind that mere ownership by a single stockholder or by
another corporation of all or nearly all of the capital stocks of the corporation, is not
itself a sufficient warrant for disregarding the fiction of separate personality. (Liddel
and Co. vs. Collector of Internal revenue, G.R. No. 9687, June 30, 1961).
It is recognized as lawful to obtain a corporation charter, even with a single
substantial stockholder, to engage in specific activity and such activity may co-exist
with other private activities of the stockholders.
If the corporation is substantial one, conducted lawfully; without fraud on another, its
separate identity is to be respected.[40]
In this jurisdiction, it is a settled rule that conclusions and findings of fact by trial
court are entitled to great weight on appeal and should not be disturbed unless for
strong and cogent reasons because the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the witnesses while testifying in the
case.[41]
It is likewise improper to state that the MIWPI is the privy or the successor-ininterest of MLE, as the liability for the encroachment over DAVENCORs timber
concession is concerned, by reason of the transfer of interest in PTL No. 30 from MLE
to MIWPI.
First at all, it does not appear indubitable that the said transfer ever became
effective, since PTL No. 30 remained in the name of Milagros Matuguina/MLE until it
expired on June 30, 1977.[42]
More importantly, even if it is deemed that there was a valid change of name and
transfer of interest in the PTL No. 30, this only signifies a transfer of authority, from MLE
to MIWPI, to conduct logging operations in the area covered by PTL No. 30. It does not

show indubitable proof that MIWPI was a mere conduit or successor of Milagros
Matuguina/MLE, as far the latters liability for the encroachment upon DAVENCORs
concession is concerned. This is the only conclusion which we can discern from the
language of Section 61 of P.D. 705,[43] and the letters of the Acting Minister of Natural
Resources to Milagros Matuguina/MLE and to MIWPI, on September 16, 1975.[44] In
Soriano vs. Court of Appeals, this Court stated in clear language, that-

It is the general rule that the protective mantle of a corporations separate and
distinct personality could only be pierced and liability attached directly to its officers
and/or members stockholders, when the same is used for fraudulent, unfair, or
illegal purpose. In the case at bar, there is no showing that the Association entered
into the transaction with the private respondent for the purpose of defrauding the latter
of his goods or the payment thereof. xxx. Therefore, the general rule on corporate
liability, not the exception, should be applied in resolving this case. (G.R. No. 49834,
June 22, 1989)
The respondents cite Section 61 of P.D. 705 to establish MIWPIs succession to the
liability of Milagros Matuguina/MLE:

SEC. 61. Transfer. Unless authorized by the Department Head, no licensee, lessee,
or permittee may transfer, exchange, sell, or convey his license agreement, license,
lease or permit, or any of his rights or interest therein, or any of his assets used in
connection therewith.
The licensee, lessee, or permittee shall be allowed to transfer or convey his license
agreement, license, lease, or permit only if he has not violated any forestry law, rule
or regulation; has been faithfully complying with the terms and conditions of the
license agreement, license, lease or permit; the transferee has all the qualifications and
none of the disqualifications to hold a license agreement, license, lease or permit;
there is no evidence that such transfer or conveyance is being made for purposes of
speculation; and the transferee shall assume all the obligations of the transferor.
The transferor shall forever be barred from acquiring another license agreement,
license, lease or permit.
Even if it is mandated in the abovestated provision that the transferee shall assume
all the obligations of the transferor this does not mean that all obligations are assumed,
indiscriminately.
Invariably, it is not the letter, but the spirit of the law and intent of the legislature that
is important. When the interpretation of a statute according to the exact and literal
import of its words would lead to absurdity, it should be construed according to the spirit
and reason, disregarding if necessary the letter of the law.[45]
In construing statutes, the terms used therein are generally to be given their
ordinary meaning, that is, such meaning which is ascribed to them when they are
commonly used, to the end that absurdity in the law must be avoided.[46] The term
obligations as used in the final clause of the second paragraph of Section 61 of P.D.
705 is construed to mean those obligations incurred by the transferor in the ordinary
course of business. It cannot be construed to mean those obligations or liabilities
incurred by the transferor as a result of transgressions of the law, as these are personal

obligations of the transferor, and could not have been included in the term obligations
absent any modifying provision to that effect.
In the September 16, 1975 letters of Acting Director of the Bureau of Forest
Development to Milagros Matuguina and MIWPI informing them of the approval of
Matuguina's request for the change of name and transfer of management of PTL No.
30, the following statements were made by the Acting Director:

"In view hereof, (Matuguina Integrated Wood Products, Inc.) shall assume the
responsibility of paying whatever pending liabilities and/or accounts remaining
unsettled, if any, by the former licensee, Milagros Matuguina, with the
government." (Emphasis ours)[47]
Accordingly, the letter's language implies that the obligations which MIWPI are to
assume as transferee of Milagros Matuguina/MLE are those obligations in favor of the
government only, and not to any other entity. Thus this would include Forestry
Charges, Taxes, Fees, and similar accountabilities.
In sum, the Court makes the following pronouncements:
(a) The respondent Honorable Minister of Natural Resources gravely abuse its
discretion when it issued its Order of Execution on January 6, 1987, including therein as
one of the parties liable the petitioner Matuguina Integrated Wood Products, Inc., which
was never a party to the assailed proceeding resulting in the issuance of such Order and,
without affording the same an opportunity to be heard before it was adjudged liable.
(b) The petitioner is a corporate entity separate and distinct from Milagros
Matuguina/Matuguina Logging Enterprises, there being no clear basis for considering it as
a mere conduit or alter ego of Matuguina/MLE, and therefore, cannot be made liable for the
obligations of the same for encroachment over the timber concession of private respondent
DAVENCOR.

IN VIEW OF THE FOREGOING, the petition is hereby GRANTED, and the Decision
dated February 25, 1991 is SET ASIDE. The decision of the Regional Trial Court is
hereby REINSTATED, and correspondingly, Order of Execution of the respondent
Secretary of Natural Resources is declared Null and Void and without effect.
No pronouncement as to cost.
SO ORDERED.
Regalado (Chairman), Romero, Puno, and Mendoza, JJ., concur.

[1]

Articles of Incorporation of MIWPI are on p. 232 of Rollo.

Rollo, p. 222.
[3]
Ibid., p. 227.
[4]
Ibid., p. 228.
[5]
Ibid., p. 250.
[6]
Infra.
[7]
Rollo, p. 194.
[8]
Ibid., p. 172.
[9]
Ibid., 188.
[10]
Ibid., 93.
[11]
Ibid., 191.
[12]
Ibid., p. 77.
[13]
Ibid., p. 102.
[2]

[14]

Ibid., p. 106.
Ibid., p. 109.
[16]
Ibid., p. 117.
[17]
Ibid., p. 159.17 dated July 16, 1987
[18]
Ibid, p. 122.
[19]
Ibid., p. 309.
[20]
Ibid., p. 63.
[21]
Ibid., p. 383.
[22]
Ibid., p. 388.
[23]
Ibid., p. 72.
[24]
Ibid., p. 10.
[25]
Petition, Rollo, 26.
[26]
Comment of DAVENCOR, Rollo, p. 409; Comment of respondent Minister (Secretary) of Natural
Resources, Rollo, p. 497.
[27]
Vda. De Medina vs. Hon Fernando A. Cruz, etc., G.R. No. L-39272, May 4, 1988, 161 SCRA 36.
[28]
Buazon, et. al. vs. Court of appeals, et. al., G.R. No. 97749, March 19, 1993, 220 SCRA 182.
[29]
St Dominic Corp. vs. Intermediate Appellate Court, etc., G.R., Nos. L-70623, L-48630, June 30, 1987,
151 SCRA 577.
[30]
Buan vs. court of Appeals, et al., G.R. No. 101614, August 17, 1994, 235 SCRA 424.
[31]
Moran, M., Comments on the Rules of Court, 1979 ed., vol. 2, p. 278.
[32]
Ang Tibay vs. Court of Industrial Relations, 69 Phil 635.
[33]
G.R. No. 34637, February 24, 1984, 127 SCRA 757.
[34]
RTC Decision, supra.
[35]
3 Moran, p. 183.
[36]
G.R. No. L-37790, March 25, 1976, 70 SCRA 139.
[37]
Laperal Development Corporation vs. Court of Appeals, G.R. No. 96354, June 8, 1993, 223 SCRA
261.
[38]
Koppel vs. Yatco, supra; Liddell & Co. vs. CIR, G.R. No. L-9687, June 30, 1961, 2 SCRA 632.
[39]
Del Rosario vs. NLRC, G.R. No. 85416, July 24, 1990, 187 SCRA 777.
[40]
RTC Decision, supra.
[41]
Bael, et al., vs. IAC, et al., G.R. No. 74423, January 30, 1989, 169 SCRA 617.
[42]
See BFD Certification to that effect, Rollo, p. 193.
[43]
71 O.G. No. 28, 4289, July 14, 1975.
[44]
Rollo, pp. 229-230.
[45]
Lopez vs. Court of Tax Appeals, G.R. No. 9274, February 1, 1957, 100 Phil 850.
[46]
82 C.J.S. p. 639, cited in Martin R., Stutory Construction, 1979 ed., p. 83.
[47]
Rollo, pp. 229-230.
[15]